Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedent: (a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative. (b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B). (c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated by the Commission. (d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters. (e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters. (f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. (g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters. (h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters. (i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters. (j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters. (k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters. (l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters. (m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters. (n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters. (o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters. (p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters. (q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters. (r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date. (s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. (t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus. (u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity. (v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with. (w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (BMW Vehicle Lease Trust 2021-2)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm ADSs on the First Closing Date and the Option Securities to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein (as though made hereinon such Closing Date), to the accuracy of the statements of officers of Company officers, each Selling Shareholder, as the Depositor case maybe, and BMW Financial Services the Depositary made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Shareholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representatives shall have received letters, dated, respectively, the date hereof and at each Closing, of Deloitte Touche Tohmatsu CPA Ltd., confirming that they are registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form attached as Annex C hereto; provided in any letter dated a Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, specified date referred to in Annex C shall be in full force and effect and a date no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect more than three days prior to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativesuch Closing Date.
(b) Both at or before If the date hereofEffective Time of the Additional Registration Statement, and on or before the Closing Dateif any, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary time the Final Prospectus is finalized and covering procedures performed as of the date of the Preliminary Prospectusdistributed to any Underwriter, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report occurred at or prior such later date as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representatives. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on the date of this Agreement or prior such later date as shall have been consented to by the Representatives. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects or of the Company, the Subsidiaries and the Affiliated Entity taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) a change in U.S., the PRC, the British Virgin Islands, the United Kingdom or international financial, political or economic conditions or currency exchange rates, exchange controls, or taxation, including any transfer taxes, duties, or withholding obligations the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the London Stock Exchange (including the Alternative Investment Market of the London Stock Exchange), or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal, New York, PRC, the British Virgin Islands or the United Kingdom authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or the United Kingdom; (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the British Virgin Islands, the United Kingdom or the PRC, any declaration of war by the U.S. Congress, the PRC, the United Kingdom or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered ADSs or to enforce contracts for the sale of the Offered ADSs.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of Xxxxxx & Xxxxxxx LLP, United States counsel for the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services Company, addressed to the Underwriters, dated substantially in the Closing Date and form set forth in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex D hereto.
(e) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxBoss & Young, Xxxxx & Xxxxxxx LLP, PRC counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date and addressing corporate, enforceability and securities matters satisfactory form set forth in form and substance to the Representative and counsel to the UnderwritersAnnex E hereto.
(f) The Representative Representatives shall have received an opinion or opinions dated such Closing Date, of XxxxxxXxxxxx Westwood & Reigels, Xxxxx & Bockius LLP, British Virgin Islands counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actform set forth in Annex F hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxxan opinion dated such Closing Date, Xxxxx & Bockius LLPof Pinsent Masons, United Kingdom counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date satisfactory form set forth in form and substance to the Representative and counsel to the UnderwritersAnnex G hereto.
(h) On the Closing Date, the Representative The Representatives shall have received the favorable opinion dated such Closing date, of Xxxxxxxx, Xxxxxx & FingerXxxxxxx LLP, P.A., special Delaware United States counsel for the Depositor and BMW Financial ServicesSelling Shareholders, addressed to the Underwriters, dated substantially in the Closing Date and form set forth in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex H hereto.
(i) On the Closing Date, the Representative The Representatives shall have received the favorable an opinion dated such Closing date, of Xxxxxx Westwood & Xxxxxxxxx LLPReigels, special Indiana British Virgin Islands counsel to the UTI Beneficiaryfor certain Selling Shareholders, addressed to the Underwriters, dated in the Closing Date and in form and substance reasonably satisfactory to the Representative Representations and counsel to the Underwritersas set forth in Annex I hereto.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, The Underwriters shall have delivered received an opinion addressed to the Underwritersopinion, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the such Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxxfrom Xxxxx, Xxxxx Xxxxxx & Xxxxxxx Xxxxxx LLP, special counsel to for the Depositor and BMW Financial ServicesDepositary, addressed to the Underwriters, substantially in the form set forth in Annex J hereto.
(k) The Representatives shall have received from Shearman & Sterling LLP, United States counsel for the Underwriters, such opinion or opinions, dated the such Closing Date and in form and substance satisfactory to the Representative and counsel Date, addressed to the Underwriters, with respect to (i) certain true sale such matters as the Representatives may require, and nonconsolidation bankruptcy the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely as to the incorporation of the Company and all other matters governed by British Virgin Islands laws upon the opinion of Xxxxxx Westwood & Riegels and (ii) certain security interest mattersas to all matters governed by the laws of the PRC upon the opinions of Boss & Young referred to above and the opinions of Haiwen & Partners referred to below.
(l) The Representative Representatives shall have received an opinion of Xxxxxxx and Xxxxxx LLPfrom Haiwen & Partners, PRC counsel to the Indenture Trustee, addressed to the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Closing Date Representatives may require, and satisfactory in form the Selling Shareholders and substance the Company shall have furnished to such counsel such documents as they may reasonably request for the Representative and counsel purpose of enabling them to the Underwriterspass upon such matters.
(m) On The Depositary shall have furnished or caused to be furnished to the Closing DateUnderwriters a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADRs evidencing the ADSs, the Representative shall have received execution, issuance, countersignature and delivery of the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel ADRs evidencing the ADSs pursuant to the Vehicle Trustee, addressed to Deposit Agreement and such other matters related thereto as the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the UnderwritersRepresentatives may reasonably request.
(n) The Representative Company and the Depositary shall have received an opinion executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to Shares and the Underwriters, dated issuance of the Closing Date and satisfactory ADSs in form and substance to accordance with the Representative and counsel to the UnderwritersDeposit Agreement.
(o) The Representative Representatives shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the such Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Financial Officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission, the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company, the Subsidiaries and the Affiliated Entity taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(p) On or prior to the date of this Agreement, the Representatives shall have received lock-up letters from each of the directors and executive officers of the Company and the existing beneficial owners of the Shares listed on Annex B-I, in each case substantially in the form attached hereto as Annex B-II.
(q) The Representatives shall have received a certificate, dated such Closing Date, of an authorized representative of each Selling Shareholder in which such authorized representative shall state that: the representations and warranties of such Selling Shareholder in this Agreement are true and correct; and the Selling Shareholders have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(r) On the date hereof, the Selling Shareholder shall have furnished for review by the Representatives executed copies of the Power of Attorney and Custody Agreement.
(s) On or prior to the First Closing Date, the Representatives shall have received a letter of the Custodian stating that they will deliver to each Selling Shareholder a United States Treasury Department Form 1099 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) on before January 31, 2009.
(t) Each Class of Notes shall have been rated To avoid a 28% backup withholding tax each Selling Shareholder will deliver to the rating Representatives a properly completed and executed United States Treasury Department Form W-9, W-8BEN (or other applicable form or statement specified by Treasury Department regulations in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectuslieu thereof to establish an exemption from backup withholding).
(u) The Representative ADSs shall have received, from each of BMW Financial Services, the UTI Beneficiary been listed and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby admitted and in the Transaction Documents and (iv) designation of incumbency of each such entityauthorized for trading on The New York Stock Exchange.
(v) All requirements of Rules 15Ga-2 and 17g-10 under The Offered Shares represented by the Exchange Act Offered ADSs shall have been and will be timely complied withapproved by AIM for admission for trading on AIM.
(w) The Depositor shall provide On or cause to be provided prior to the Representative First Closing Date, the Offered ADSs shall be eligible for clearance and settlement through the facilities of DTC. The Selling Shareholders and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Option Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Seller and the Servicer herein, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On At the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, time this Agreement is executed and delivered by the parties thereto, shall be in full force Seller and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Closing Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to Effective Time of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers' certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.Seller representing and
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables Corp /De)
Conditions of the Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Notes Securities on the Closing Date will be subject to the accuracy of the representations and warranties made herein, on the part of the Company herein as of the Applicable Time and as of the Closing Date to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each date of the Transaction DocumentsProspectus (prior to the execution of this Agreement), on the SUBI Certificateeffective date of any additional registration or any post‑effective amendment to any Registration Statement, in each case, that is filed subsequent to the Notes date of this Agreement, and on the Certificates Closing Date (at 9:30 A.M., New York City time, on such date), KPMG LLP shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect furnished to the Notes Representatives a letter or letters, dated the respective date of delivery thereof, in form and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided substance satisfactory to the RepresentativeRepresentatives.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company or its subsidiaries which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities, preferred shares, financial strength or claims paying ability of the Company or any of the Designated Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred shares of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any material suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by United States federal, New York, U.K. or Bermudian authorities; (vi) a change or development involving a prospective change in Bermuda taxation affecting the Company, the Preference Shares or transfers thereof; (vii) any major disruption of settlements of securities or clearance services in the United States, United Kingdom or Bermuda; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the United Kingdom or Bermuda, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Securities.
(d) On The Representatives shall have received an opinion, dated the Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx LLP, United States counsel for the Representative shall have received Company in the favorable opinion or opinions form of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex I hereto.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing corporateDate, enforceability and securities matters satisfactory of Xxxxxxx (Bermuda) Limited, Bermuda counsel for the Company in the form and substance to the Representative and counsel to the Underwritersof Annex II hereto.
(f) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing Date, of Xxxxxxx Xxxx & Xxxxxxxxx (UK) LLP, U.K. counsel for the following issues (i) none Company, in the form of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActAnnex III hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx Xxxxxxx Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable such opinion or opinions of Xxxxxxopinions, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the Registration Statement, the Prospectus and other related matters as the Representative Representatives may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(rh) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate or certificates, dated the applicable Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each any two of the DepositorChief Executive Officer, BMW the Chief Financial Services and Officer or the UTI Beneficiary shall have furnished to the Representative a certificate of each General Counsel of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package and the Prospectus, there has been no material adverse change, or any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in the General Disclosure Package and the Prospectus or as described in such certificate.
(ti) Each Class On the date of Notes the Prospectus (prior to the execution of this Agreement), on the effective date of any additional registration or any post-effective amendment to any Registration Statement, in each case, that is filed subsequent to the date of this Agreement, and on the Closing Date (at 9:30 A.M., New York City time, on such date), the Chief Financial Officer of the Company shall have been rated furnished to the rating specified Representatives a certificate or certificates, dated the respective date of delivery thereof, with respect to certain financial data contained in the Ratings Free Writing Prospectus by Registration Statement, the hired NRSROs specified General Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Ratings Free Writing ProspectusRepresentatives.
(uj) The Representative Company shall have received, from each of BMW Financial Services, provided the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed Representatives with copies of such additional opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may Representatives reasonably request.
(k) On the Closing Date, the Securities shall be rated at least “Ba1” by Xxxxx’x, “BBB-” by S&P and “bb+” by A.M. Best, and each such rating agency shall have delivered to the Representatives a letter, or other evidence satisfactory to the Representatives, confirming that the Securities have such ratings.
(l) At the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities, as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(m) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Date and such termination shall be without liability of any party to any other party except as provided in Section 5(a)(xiv) and except that Sections 2, 8, 10, 11 and 19 shall survive any such termination and remain in full force and effect. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Aspen Insurance Holdings LTD)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy condition that each of the representations Registration Statement, the ADS Registration Statement and warranties made hereinthe Exchange Act Registration Statement shall have become effective not later than P.M., to New York City time, on the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, date hereof and to the following additional conditions precedent:
(aA) On The representations and warranties of the Company contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of the Closing Date, each and the Company has performed all of its obligations and satisfied all of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall conditions hereunder on its part that are required to be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at performed or before the date hereof, and satisfied on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(cB) The Preliminary Prospectus, the Prospectus, each Free Writing Final Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesCompany, shall be contemplated by the Commission. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A.
(C) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries and Affiliated Entities, taken as a whole, the effect of which makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Securities on the First Closing Date or the Optional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement.
(dD) On The Representatives shall have received letters, dated, respectively, the date hereof and each Closing Date, of Ernst & Young LLP, independent public accountants within the Representative meaning of the Securities Laws, substantially in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the letter delivered on each Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date.
(E) The Representatives shall have received the favorable opinion or opinions and disclosure letter of in-house Xxxxxxxx & Xxxxx International LLP, United States counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Depositor Representatives.
(F) The Representatives shall have received the opinion of Xxxxxx and BMW Financial Services addressed Calder (Hong Kong) LLP, Cayman counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(G) The Representatives shall have received the opinion of Rajah & Xxxx Singapore LLP, Singaporean counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(H) The Representatives shall have received the opinion of LCS & Partners, Taiwanese counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(I) The Representatives shall have received the opinion of Assegaf Hamzah & Partners, Indonesian counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(J) The Representatives shall have received the opinion of Rajah & Xxxx LCT Lawyers, Vietnamese counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(K) The Representatives shall have received the opinion of Hunton & Xxxxxxxx (Thailand) Limited, Thai counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(L) The Representatives shall have received the opinion of Han Kun Law Offices, PRC counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(M) The Representatives shall have received the opinion of Xxxxxx Xxxxxxx Xxxxxxxxxxxx Xxxxx & de los Angeles, Philippines counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(N) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, a disclosure letter and an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(O) The Representatives shall have received from Xxxxx & Overy Legal (Thailand) Co. Limited, Thai counsel for the Underwriters, an opinion, dated such Closing Date and Date, with respect to such matters as the Representatives may require.
(P) The Representatives shall have received from Tsar & Tsai Law Firm, Taiwanese counsel for the Underwriters, an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(Q) The Representatives shall have received from Hiswara Bunjamin & Tandjung (in association with Xxxxxxx Xxxxx Freehills), Indonesian counsel for the Underwriters, an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(R) The Representatives shall have received from Xxxxx & Overy Legal (Vietnam) LLC, Vietnamese counsel for the Underwriters, an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(S) The Representatives shall have received the opinions of Xxxxx, Xxxxxx & Xxxxxx LLP , counsel for the Depositary, in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives.
(eT) The Representative Company shall have received an opinion furnished or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel caused to be furnished to the Depositor, BMW Financial Services and Representatives certificates of a duly authorized executive officer of the Trust, addressed to the UnderwritersCompany, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLPRepresentatives, in its capacity which such officer shall represent as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
follows: (k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (iia) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the agreements and satisfied the conditions performed all of its obligations hereunder on its part that are required to be performed or satisfied and not otherwise waived by the Representatives at or prior to the such Closing Date Date, and (ivb) such other matters as the Representatives may reasonably request.
(in the case of the Depositor and BMW Financial Services onlyU) that no No stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the Company’s best knowledge, are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission.
(tV) Each Class On or prior to the date hereof, the Representatives shall have received lock-up letters from each of Notes the directors, executive officers and certain existing share and convertible promissory note and bond holders of the Company, each substantially in the form and substance set forth in Exhibit A.
(W) The Chief Financial Officer of the Company shall have furnished to the Representatives, dated, respectively, the date hereof and such Closing Date, certificates to the effect that certain operating and financial data disclosed in the Registration Statement, the General Disclosure Package and the Final Disclosure Package have been derived from and verified against the Company’s accounting and business records, and he has no reason to believe that such data is not true and correct.
(X) The Company and the Depositary shall have executed and delivered the Deposit Agreement, and the Deposit Agreement shall be in full force and effect on the Closing Date. The Company and the Depositary shall have taken all actions necessary to permit the deposit of the Offered Shares and the issuance of the American Depositary Shares representing such Offered Shares in accordance with the Deposit Agreement.
(Y) The Depositary shall have furnished or caused to be furnished to the Representatives at such Closing Date, confirmation satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of the corresponding ADRs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(Z) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder.
(AA) No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Registration Statement, the ADS Registration Statement or the Final Prospectus shall have been rated filed to which the rating specified Representatives have objected in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectuswriting.
(uBB) The Representative Offered Securities shall have received, from each of BMW Financial Services, been approved to be listed on the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityNYSE.
(vCC) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide On or cause to be provided prior to the Representative First Closing Date, the Offered Securities shall be eligible for clearance and settlement through the facilities of DTC. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters Representatives may reasonably request. If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Optional Securities on an Optional Closing Date which is after the First Closing Date, the obligations of the several Underwriters to purchase the relevant Optional Securities shall be deemed terminated by the Company at any time at or prior to the First Closing Date or such Optional Closing Date, as the case may be, unless as otherwise provided or agreed in writing by the Company and the Representatives, and such termination shall be without liability of any party to any other party except as provided in Section 11. Notwithstanding the immediately preceding paragraph, the Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Optional Closing Date or otherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Sea LTD)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of each of the Trust, the Depositor and NMAC herein on the date hereof and at the Series 2016-A Issuance Date, to the accuracy of the statements of officers of the Trust, the Depositor and BMW Financial Services NMAC made pursuant hereto when madeto the provisions hereof, to the performance by the Trust, the Depositor and BMW Financial Services NMAC of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Series 2016-A Issuance Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Series 2016-A Issuance Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to time of effectiveness of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the Closing execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Series 2016-A Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesDepositor, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersofficers’ certificate, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the XxxxSeries 2016-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing A Issuance Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerDepositor representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Series 2016-A Issuance Date:
(i) since the date Each of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Series 2016-A Issuance Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Series 2016-A Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Series 2016-A Issuance Date:
(i) Each Class of the representations and warranties of NMAC in this Agreement is true and correct in all material respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Series 2016-A Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of NMAC or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Depositor, Nissan North America, Inc. (“NNA”) or NMAC which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Series 2016-A Issuance Date, Xxxx X. Xxxx, Esq., General Counsel of the Depositor and NMAC, or other counsel reasonably satisfactory to the Representative in its reasonable judgment, shall have been rated furnished to the rating specified Representative such counsel’s written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2016-A Issuance Date, reasonably satisfactory in form and substance to the Representative and its counsel.
(g) At the Series 2016-A Issuance Date, Xxxxx Xxxxx LLP, special counsel to the Depositor and NMAC, shall have furnished to the Representative their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated as of the Series 2016-A Issuance Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, tax matters, the validity of the Notes, the Registration Statement, the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus.
(h) At the Series 2016-A Issuance Date, Xxxxx Xxxxx LLP shall have furnished their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2016-A Issuance Date, with respect to the characterization of the transfer of the Receivables by NMAC to the Depositor and with respect to other bankruptcy and perfection of security interest matters and such opinion shall be reasonably satisfactory in form and in substance to the Representative and its counsel.
(i) At the Series 2016-A Issuance Date, Xxxxxx Xxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Series 2016-A Issuance Date, with respect to the validity of the Notes and such other related matters as the Underwriters shall require, and such opinion shall be reasonably satisfactory in form and substance to the Representative and its counsel and the Depositor shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Series 2016-A Issuance Date, Xxxxxxxx, Xxxxxx & Finger, counsel to the Trust and the Owner Trustee, shall have furnished their written opinion to you, the Depositor and the Servicer, dated the Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(k) At the Series 2016-A Issuance Date, Xxxxxx & Xxxxxxx LLP, counsel to the Indenture Trustee, shall have furnished their written opinion dated as of Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(l) At the Series 2016-A Issuance Date, in-house counsel to the Asset Representations Reviewer, shall have furnished such counsel’s written opinion dated as of Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(m) The Representative shall have received an officer’s certificate dated the 2016-A Issuance Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Depositor and NMAC in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Depositor or NMAC, as applicable, contained in the Ratings Free Writing Prospectus by Transfer and Servicing Agreement and the hired NRSROs representations and warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase Agreement are true and correct in all material respects and that the Depositor or NMAC, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Series 2016-A Issuance Date in all material respects.
(n) At the Series 2016-A Issuance Date, Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee counsel to the Depositor and NMAC, shall have furnished their written opinion dated as of Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(o) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
(up) The Representative On or prior to the Series 2016-A Issuance Date, the Trust, the Depositor and NMAC shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of Underwriters such opinions, certificates, letters further certificates and documents as the Representative or counsel to the Underwriters may shall reasonably requesthave required.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Wholesale Receivables Corp Ii)
Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase and pay for the Notes Securities will be subject to the accuracy of the representations and warranties made on the part of the Province herein, to the accuracy of the statements of officers the representatives of the Depositor and BMW Financial Services Province made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Province of its obligations hereunder and BMW Financial Services of their obligations hereunder, with regard to the Securities and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Province or BMW Financial Servicesthe Representatives, shall be contemplated by the CommissionSEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement.
(db) On Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the Representative financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received received, on the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the UnderwritersClosing Date, a certificate dated the Closing Date and in form and substance signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representative and counsel Representatives to the Underwriterseffect set forth in the first clause of this Section 9(b).
(ec) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative Underwriters shall have received an opinion of Xxxxxxx and Xxxxxx LLPthe Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)Province, dated the Closing Date, to the effect that under the Underwriters may rely laws of British Columbia and Canada and subject to such qualifications and based on each such assumptions as are customary in British Columbia in respect of an opinion of this type:
(i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the same extent as though such opinion was addressed to each as of its dateSecurities.
(sii) Each This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the DepositorProvince, BMW Financial Services except as rights to indemnity and contribution hereunder may be limited under applicable law.
(iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the UTI Beneficiary Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities.
(iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect.
(v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada.
(vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated.
(vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.
d) The Underwriters shall have furnished received an opinion of Osler, Hxxxxx & Harcourt LLP, Canadian counsel to the Representative a certificate of each Underwriters, given in respect of the Depositor, BMW Financial Services laws of British Columbia and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicableCanada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Osler, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Osler, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon.
e) The Underwriters shall have received the opinion of Shearman & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that:
(i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities.
(ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.
(iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, and “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the signer legal matters referred to therein.
(iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder.
f) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure.
g) The Underwriters shall have received a certificate has reviewed of the Registration StatementMinister of Finance of the Province, the Prospectus, any supplements Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Prospectus and this Agreement and that Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event shall state that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Province in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Province has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the CommissionSEC.
(th) Each Class The purchase and sale of Notes the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York.
i) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request.
j) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been rated the rating specified given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the Ratings Free Writing Prospectus ratings accorded the debt securities of the Province by the hired NRSROs specified any nationally recognized statistical rating agency in the Ratings Free Writing Prospectus.
(u) The Representative shall have receivedUnited States. All such opinions, from each of BMW Financial Servicescertificates, the UTI Beneficiary letters and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and documents will be timely complied with.
(w) The Depositor shall provide or cause to be provided in compliance with the provisions hereof only if they are reasonably satisfactory to the Representative Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representative Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or counsel at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Underwriters may reasonably requestProvince or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.
Appears in 1 contract
Samples: Fiscal Agency Agreement (Province of British Columbia)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties made hereinon the part of the Company, the Principal Stockholders and the Partnership herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, and to the following additional conditions precedentconditions:
(a) On The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 1:00 P.M., Chicago Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 1:00 P.M., Chicago Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, each of as the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Datecase may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period and the Company will provide evidence satisfactory to the Representatives of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for or exempted from sale under the state securities and insurance laws of such states as shall have been specified by the Representatives.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and the Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters.
(d) On You shall not have advised the Closing DateCompany that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact, which, in the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to for the Underwriters, dated is material or omits to state a fact which, in the Closing Date opinion of such counsel, is material and in form and substance satisfactory is required to be stated therein or necessary to make the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the Trustbusiness or properties of the Company or its subsidiaries, addressed whether or not arising in the ordinary course of business, which, in the reasonable judgment of the Representatives, makes it impractical or inadvisable to proceed with the Underwriters, dated public offering or purchase of the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersShares as contemplated hereby.
(f) The Representative There shall have received an opinion or opinions been furnished to you, as Representatives of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated on the First Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Second Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.except as otherwise expressly provided below:
(i) On An opinion of Kahn, Kleinman, Yanoxxxx xxx Arnsxx, L.P.A., counsel for the Closing DateCompany, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust Partnership and the TrustPrincipal Stockholders, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, to the effect that:
(1) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Ohio with corporate power and authority to own its properties and conduct its business as described in the Prospectus; and the Company has been duly qualified to do business as a foreign corporation under the corporation law of, and is in good standing as such in, every jurisdiction where it owns or leases property;
(2) an opinion to the same general effect as clause (1) of this subparagraph (i) in respect of each direct and indirect subsidiary of the Company;
(3) the authorized capital stock of the Company, of which there is outstanding the amount set forth in the Registration Statement and Prospectus (except for subsequent issuances, if any, pursuant to stock options or other rights referred to in the Prospectus), conforms as to legal matters in all material respects to the description thereof in the Registration Statement and Prospectus; the issued and outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and nonassessable and free of statutory preemptive rights;
(4) the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized, validly issued and is fully paid and nonassessable and free of statutory preemptive rights, and the Company owns directly or indirectly 100 percent of the outstanding capital stock of each subsidiary, and to the best knowledge of such counsel, such stock is owned free and clear of any claims, liens, encumbrances or security interests.
(5) the certificates for the Shares to be delivered hereunder are in due and proper form, and when duly countersigned by the Company's transfer agent and delivered to you or upon your order against payment of the agreed consideration therefor in accordance with the provisions of this Agreement and the Transaction Documents Pricing Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable and will be free of any pledge, lien, encumbrance, claim or preemptive rights of, or rights of first refusal in favor of, stockholders with respect to any of the Shares or the issuance or sale thereof which it is a partyare created by or arise under the certificate of incorporation or bylaws of the Company; to the best knowledge of such counsel, there are true no contractual preemptive rights, rights of first refusal, rights of co-sale or other similar rights which exist with respect to any of the Shares or the issuance and correctsale thereof; and the Shares have been duly and validly authorized and Market, subject to official notice of issuance;
(iii6) the DepositorRegistration Statement has become effective under the 1933 Act, BMW Financial Services and the UTI Beneficiaryand, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case best knowledge of the Depositor and BMW Financial Services only) that such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act, and the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable), the Prospectus and each amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the 1933 Act; such counsel have no reason to believe that either the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) or the Prospectus, or the Registration Statement or the Prospectus as amended or supplemented (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion), as of their respective effective or issue dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as amended or supplemented, if applicable, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made; the statements in the Registration Statement and the Prospectus summarizing statutes, rules and regulations are contemplated accurate and fairly and correctly present the information required to be presented by the Commission.1933 Act or the rules and regulations thereunder, in all material respects and such counsel does not know of any statutes, rules and regulations required to be described or referred to in the Registration Statement or the Prospectus that are not described or referred to therein as required; and such counsel does not know of any legal or governmental proceedings pending or threatened required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed, as required;
(t7) Each Class the statements under the captions "Certain Corporate Transactions,""Management," "Certain Transactions," "Description of Notes shall have been rated the rating specified Capital Stock" and "Shares Eligible for Future Sale" in the Ratings Free Writing Prospectus Prospectus, insofar as such statements constitute a summary of transactions or documents referred to therein or matters of law, are to the best knowledge of such counsel accurate summaries of such transactions or documents and are accurate summaries of matters of law and fairly and correctly present, in all material respects, the information required to be disclosed with respect to such transactions, documents and matters by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary 1933 Act and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby rules and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.regulations thereunder;
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Debentures will be subject to the accuracy of the representations and warranties made on the part of the Corporation herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Corporation made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Corporation of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall have been filed by the Corporation with the Rules Commission within the applicable time periods prescribed for such filings by, and Regulations otherwise in compliance with, Rule 433 of the 1933 Act Regulations.
(b) On or after the Applicable Time and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Corporation or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Xxxxx’x Investors Service, Inc., Standard & Poor’s Ratings Services or Fitch Ratings Inc. to any debt securities or preferred stock of the Corporation as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Corporation, financial or otherwise, except as reflected in or contemplated by the Prospectus, and, since such dates and BMW Financial Services addressed up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Debentures on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPX. Xxxxx III, counsel to Esq., Deputy General Counsel of the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)Corporation, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.that:
(si) Each of the DepositorPrincipal Subsidiaries, BMW Financial Services other than Duke Energy Carolinas, LLC, has been duly incorporated and is validly existing in good standing under the laws of the jurisdiction of its incorporation has the respective corporate power and authority and foreign qualifications necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the UTI Beneficiary shall have furnished to Prospectus. Duke Energy Carolinas, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the Representative a certificate of each laws of the Depositor, BMW Financial Services State of North Carolina and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the UTI Beneficiary, as applicable, signed by its Chairman Prospectus.
(ii) Each of the Board, President, any Vice President, Corporation and the Treasurer, any Assistant Treasurer, Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary, its subsidiaries taken as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, whole.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCorporation.
(wvi) The Depositor execution, delivery and performance by the Corporation of this Agreement, the Indenture and the issue and sale of the Debentures will not violate or contravene any of the provisions of the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject which affects in a material way the Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Debentures.
(vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms.
(viii) The Debentures have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Debentures.
(ix) No consent, approval, authorization, order, registration or qualification is required to authorize, or for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Debentures by the Underwriters and except as required in Condition 7.6 of the order of the North Carolina Utilities Commission dated June 29, 2012, in Docket No. E-7, sub 986, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Such counsel shall provide state that nothing has come to his attention that has caused him to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to his attention that has caused him to believe that (i) the Registration Statement, including the Rule 430B Information, as of its effective date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus or any amendment or supplement thereto, as of the date it was filed with, or transmitted for filing to, the Commission and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial data contained or incorporated by reference therein, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that he does not express any opinion concerning any law other than the law of the State of North Carolina and may rely as to all matters of the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representative conformed copies Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of such opinionsthe Corporation and other sources believed by him to be responsible.
(f) You shall have received an opinion of Xxxxxxxx, certificatesXxxxxxxx & Xxxxxx, letters and documents as the Representative or P.A., counsel to the Underwriters may reasonably requestCorporation, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Corporation.
(ii) The execution and delivery by the Corporation of this Agreement and the consummation by the Corporation of the transactions contemplated hereby, including the issuance and sale of the Debentures, will not (i) conflict with the Corporation’s certificate of incorporation or Bylaws, (ii) constitute a violation of, or a breach of or default under, the terms of any of the contracts set forth on Schedule D hereto or (iii) violate or conflict with, or result in any contravention of, any Applicable Law. “Applicable Law” means the General Corporation Law of the State of Delaware and those laws, rules and regulations of the State of New York and those federal laws, rules and regulations of the United States of America, in each case that, in such counsel’s experience, are normally applicable to transactions of the type contemplated by this Agreement (other than the United States federal securities laws, state securities or blue sky laws, antifraud laws and the rules and regulations of the Financial Industry Regulatory Authority).
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of the Seller and the Servicer herein on the date hereof and at the Closing Date, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On At the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, time this Agreement is executed and delivered by the parties thereto, shall be in full force Seller and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Closing Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed. 11 (Nissan 2013-C Underwriting Agreement)
(b) If the Representative and counsel to time of effectiveness of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers’ certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the The representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Each Class Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of Notes which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually. 12 (Nissan 2013-C Underwriting Agreement)
(d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) The representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been rated issued and no proceedings for that purpose have been instituted or, to the rating specified best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Ratings Free Writing Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the hired NRSROs context, all references to the term “material” in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co., Ltd., Nissan North America, Inc. (“NNA”) or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over the counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Closing Date, Xxxx Xxxx, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel’s written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. 13 (Nissan 2013-C Underwriting Agreement)
(g) At the Closing Date, Xxxxx Xxxxx LLP, special counsel to the Seller and the Servicer, shall have furnished to the Representative their written opinion, dated as of the Closing Date, with respect to general corporate matters, the validity of the Notes, the Registration Statement, the Prospectus Supplement and the Base Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement, the Prospectus Supplement and the Base Prospectus, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(h) At the Closing Date, Xxxxx Xxxxx LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have furnished their written opinion, dated the Closing Date, with respect to the characterization of the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(i) At the Closing Date, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Closing Date, with respect to the validity of the Notes and such other related matters as the Representative shall require, in form and substance reasonably satisfactory to the Underwriters, and the Seller shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Closing Date, Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinion addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(k) At the Closing Date, Xxxxxx & Xxxxxxx LLP, counsel to U.S. Bank National Association, as Indenture Trustee, shall have furnished their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(l) The Representative shall have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Seller or the Servicer, as applicable, contained in the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct in all material respects and that the Seller or the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date in all material respects.
(m) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
. 14 (uNissan 2013-C Underwriting Agreement) The Representative (n) On or prior to the Closing Date, the Seller shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of such opinions, certificates, letters further certificates and documents as the Representative or counsel to the Underwriters may shall reasonably requesthave required.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables 2013-C Owner Trust)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Offered Securities will be subject to the accuracy of the representations and warranties made hereinon the part of the Company herein as of the date of the applicable Terms Agreement, as of the Applicable Time and the Closing Date, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On or prior to the Closing Date, each date of the Transaction DocumentsTerms Agreement, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Representatives shall have received a fully executed copy thereof orletter or letters, in form and substance satisfactory to the Representatives, dated the date of delivery thereof, of the Company’s independent accountants confirming that as of the date of their report and during the period covered by such financial statements on which they reported, they were independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and, stating, as of the date of such letter or letters (or with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated in the Preliminary Prospectus and the Prospectus, as of a date not more than three days prior to the date of such letter or letters, provided that such date shall be after the date of the Prospectus), the conclusions and findings of such firm or firms with respect to the Notes financial statements and Certificates, a conformed copy thereof. The Transaction Documentscertain financial information contained in the Registration Statement, the SUBI Certificate, the Notes Prospectus and the Certificates shall be substantially in the forms heretofore provided to the RepresentativePricing Disclosure Package.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) of this Agreement. The final term sheet contemplated by Section 4 hereof; on or prior , and any other material required to be filed by the Closing Date, no Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesany Underwriter, shall be contemplated by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; and no stop order suspending or preventing the use of any Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.
(c) On or after the Applicable Time, there shall not have occurred (i) any change, or any development or event reasonably likely to have a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any material disruption in commercial banking or securities settlement or clearance services, or any setting of minimum prices for trading any securities of the Company on the New York Stock Exchange, or any suspension of trading of any securities of the Company on the New York Stock Exchange; (iv) any banking moratorium declared by U.S. Federal or New York authorities, or the authorities of any country in whose currency any Offered Debt Securities are denominated under the applicable Terms Agreement; (v) any outbreak or escalation of hostilities in which the United States or any country in whose currency any Offered Debt Securities are denominated under the applicable Terms Agreement is involved, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus; or (vi) any change or prospective change in, or governmental action affecting, exchange controls applicable to the currency in which any Offered Debt Securities are denominated, which change or action, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the public offering or the sale of and payment for the Offered Securities on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus.
(d) On The Representatives shall have received an opinion, dated the Closing Date, from one or more law firms acting as counsel for the Representative shall have received Company, including local counsel and attorneys employed by the favorable opinion Company or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwritersits subsidiaries, dated the Closing Date and which is reasonably acceptable in form and substance satisfactory to the Representative and counsel to the Underwriters. Such counsel may rely as to certain matters of fact, to the extent they deem proper and so long as acceptable in the reasonable opinion the Representatives, on certificates of responsible officers of the Company and public officials.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable Underwriters such opinion or opinions of Xxxxxxopinions, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the incorporation of the Company, the validity of the Offered Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representative Representatives may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters. In rendering such opinion, counsel for the Underwriters may rely as to the incorporation of the Company and all other matters governed by Virginia law upon the opinion of counsel for the Company referred to above.
(rf) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services President or any Vice President and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman on behalf of the BoardCompany, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Dateshall state that, to the effect that the signer of such certificate has reviewed the Registration Statementtheir knowledge, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the CommissionCommission and no stop order suspending or preventing the use of any prospectus or any Issuer Free Writing Prospectus shall have been instituted or is contemplated and that, subsequent to the date of the most recent financial statements included or incorporated by reference into the Pricing Prospectus and the Prospectus, there has been no material adverse change, nor any development or event reasonably likely to have a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Pricing Prospectus and the Prospectus or as described in such certificate.
(tg) Each Class of Notes The Representatives shall have been rated received a letter or letters in form and substance satisfactory to the rating specified Representatives, dated the Closing Date, of the Company’s independent accountants which confirms the conclusion and findings set forth in the Ratings Free Writing Prospectus by letter or letters of such firm or firms delivered pursuant to the hired NRSROs requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Ratings Free Writing ProspectusClosing Date for purposes of this subsection.
(uh) The Representative Representatives shall have receivedreceived from counsel reasonably satisfactory to the Representatives, from each such opinion or opinions dated the Closing Date, with respect to compliance with the laws of BMW Financial Servicesany country, other than the United States, in whose currency the Offered Securities are denominated, the UTI Beneficiary validity of the Offered Securities, the Prospectus and other related matters as they may reasonably require, and the Depositor, a certificate executed by a secretary or assistant secretary thereof Company shall have furnished to which shall be attached certified copies such counsel such documents as they reasonably request for the purpose of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing enabling them to pass upon such matters. The Company will furnish the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each Representatives with such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requestunder this Agreement and the Terms Agreement.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Seller and the Servicer herein, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On At the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, time this Agreement is executed and delivered by the parties thereto, shall be in full force Seller and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Closing Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to Effective Time of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers' certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers' knowledge after reasonable investigation, (i) since the date as of the Prospectus (exclusive of any supplement thereto)Closing Date, there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(td) Each Class of Notes The Underwriters shall have been rated received an officers' certificate, dated the rating specified in the Ratings Free Writing Prospectus Closing Date, signed by the hired NRSROs specified Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers' knowledge after reasonable investigation, as of the Closing Date, the representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Ratings Free Writing ProspectusServicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission.
(ue) The Representative Subsequent to the execution and delivery of this Agreement, there shall not have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: occurred (i) certificate any change, or any development involving a prospective change, in or affecting particularly the business or properties of formationthe Seller, Nissan Motor Co. Ltd., Nissan North America, Inc. ("NNA") or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) limited liability company agreement any downgrading in the rating of any debt securities of NNA or limited partnership agreementany of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) Joy Xxxxx, Xxq., General Counsel of the Seller, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel's written opinion, dated the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree:
(i) The Seller has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Seller's ability to perform its obligations under the Basic Documents.
(ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Servicer's ability to perform its obligations under the Basic Documents.
(iii) The Basic Documents have been duly authorized, executed and delivered by each of the Seller and the Servicer, as applicable, (iii) applicable resolutions authorizing and each of the transactions contemplated hereby Seller and in the Transaction Documents Servicer has the corporate power and authority to enter into and perform its respective obligations under the Basic Documents.
(iv) designation The execution, delivery and performance of incumbency the Basic Documents by the Seller and the Servicer will not conflict with or result in a breach of each such entityany of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the respective properties or assets of the Seller or the Servicer, pursuant to the terms of the Notes or the charter or bylaws of the Seller or the Servicer, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of their respective properties or any material agreement or instrument to which the Seller or the Servicer is a party or by which either the Seller or the Servicer or any of their respective properties is bound.
(v) All requirements No authorization, approval or consent of Rules 15Ga-2 any court or governmental agency or authority is necessary in connection with the execution, delivery and 17g-10 performance by the Seller or the Servicer of the Basic Documents to which it is a party, except such as may be required under the Exchange Act have been or the Rules and will be timely complied withRegulations and state securities laws, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of the Effective Date and the Closing Date.
(wvi) Nothing has come to such counsel's attention that would cause it to believe that as of the Effective Date and at the Closing Date the Registration Statement and the Prospectus (other than the financial statements and the other accounting information contained therein or omitted therefrom, as to which such counsel need express no belief) contained or contain any untrue statement of a material fact or omitted or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and governmental proceedings and contracts and other documents are inaccurate and do not fairly present the information required to be shown therein.
(vii) Such counsel does not know of any contract or other document of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required.
(viii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part of any Basic Document, (2) seeking to prevent the issuance of the Notes, (3) that would materially and adversely affect the Seller's or the Servicer's obligations under any Basic Document to which it is a party, or (4) seeking to affect adversely the federal or state income tax attributes of the Notes.
(ix) The Depositor shall provide or cause Servicer has corporate power and authority to sell and assign the property to be provided sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action.
(x) The Seller has corporate power and authority to sell and assign the property to be sold and assigned to and deposited with the Trust and has duly authorized such sale and assignment to the Trust by all necessary corporate action.
(xi) The Receivables are "chattel paper" as defined in the Uniform Commercial Code, as in effect in the State of California.
(xii) Such counsel is familiar with the Servicer's standard operating procedures relating to the Servicer's acquisition of a perfected first priority security interest in the vehicles financed by the retail installment sale contracts purchased by the Servicer in the ordinary course of the Servicer's business and relating to the sale by the Servicer to the Seller of such contracts and such security interests in the Financed Vehicles in the ordinary course of the Servicer's and the Seller's business. Assuming that the Servicer's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Servicer has not or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), the Servicer has acquired or will acquire a perfected first priority security interest in the Financed Vehicles.
(g) O'Melveny & Myerx XXX, special counsel to the Seller, shall have furnished to the Representative conformed copies their written opinion, dated as of the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree:
(i) Each Basic Document to which the Seller or the Servicer is a party has been duly authorized by all necessary corporate action on the part of such opinionsPerson and has been executed and delivered by such Person.
(ii) Assuming the due authorization, certificatesexecution and delivery thereof by the Owner Trustee and the Indenture Trustee, letters each Basic Document to which the Seller or the Servicer is a party constitutes a legally valid and documents binding obligation of the Seller or the Servicer, as the Representative case may be, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or counsel similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity).
(iii) Assuming the Notes have been duly and validly authorized, when executed and authenticated by the Trust as specified in the Indenture and delivered against payment of the consideration specified in this Agreement, the Notes will be legally valid and binding obligations of the Trust, and entitled to the Underwriters benefits of the Indenture enforceable against the Trust in accordance with their terms, except as may reasonably requestbe limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity).
(iv) Assuming the due authorization, execution and delivery thereof by the Trust and the Indenture Trustee, each of the Sale and Servicing Agreement and the Indenture constitutes the valid and binding obligation of the Trust enforceable against the Trust in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity).
(v) Neither the Seller nor the Trust is required to be registered under the Investment Company Act of 1940.
(vi) With respect to Financed Vehicles in the State of California, no filing or other action other than (A) the filing of a UCC financing statement naming the Servicer as transferor and the Seller as the transferee and
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables Corp /De)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company and the Selling Shareholders herein, to the accuracy of the statements of Company officers of and the Depositor and BMW Financial Services Depositary made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Shareholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representative shall have received, on the Closing Datedate hereof and at each Closing, each a letter, dated the date hereof or dated the date of such Closing, as the case may be, in the form and substance satisfactory to the Representative, from Deloitte Touche Tohmatsu Certified Public Accountants, Ltd., independent public accountants to the Company, containing statements and information of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be type ordinarily included in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, accountants’ “comfort letters” to underwriters with respect to the Notes financial statements and Certificates, a conformed copy thereof. The Transaction Documents, certain financial information and data contained in the SUBI Certificate, the Notes Registration Statement and the Certificates shall be Prospectus and in substantially in the forms heretofore provided to the Representative.form attached as Annex A hereto;
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Initial Registration Statement is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or such later date as shall have been consented to by the Preliminary Prospectus Representative. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and covering procedures performed as delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the Preliminary Prospectustime the Prospectus is printed and distributed to any Underwriter, and one relating or shall have occurred at such later date as shall have been consented to by the Prospectus, dated on or about Representative. If the date Effective Time of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; [5(a)] of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on the date of this Agreement or prior such later date as shall have been consented to by the Representative. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of any Selling Shareholder, the Depositor Company or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties, business prospects or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Underwriters including the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any change in U.S., the PRC, Hong Kong, Cayman Islands, Mauritius or international financial, political or economic conditions or currency exchange rates, exchange controls, or taxation, including any transfer taxes, duties, or withholding obligations, as would, in the judgment of a majority in interest of the Underwriters including the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or any setting of minimum prices for trading on such exchange; (iv) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal, New York, PRC, Hong Kong, Cayman Islands or Mauritius authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or Cayman Islands; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, Hong Kong, PRC or Cayman Islands, any declaration of war by the U.S. Congress, the PRC or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities.
(d) On the Closing Date, the The Representative shall have received the favorable opinion or opinions an opinion, dated such Closing Date, of in-house Xxxxx Day, U.S. counsel to the Depositor and BMW Financial Services Company, addressed to the Underwriters, dated substantially in the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.attached hereto as Annex B.
(e) The Representative shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxZhong Lun Law Firm, Xxxxx & Xxxxxxx LLP, PRC counsel to the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.attached hereto as Annex C.
(f) The Representative shall have received an opinion or opinions opinion, dated such Closing Date, of Xxxxxx and Xxxxxx, Xxxxx & Bockius LLP, Cayman Islands counsel to the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so form attached hereto as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.Annex D.
(g) The Representative shall have received a negative assurance letter an opinion, dated such Closing Date, of the Erriah & Uteem Xxxxxxxx, Mauritius counsel to the Company, addressed to the Underwriters, substantially in the form attached hereto as Annex E.
(h) The Representative shall have received an opinion, dated such Closing Date, from XxxxxxXxxxxxx, Xxxxx Xxxxxxx & Bockius Associates LLP, counsel to the DepositorDepositary, BMW Financial Services addressed to the Underwriters, substantially in the form attached hereto as Annex F.
(i) The Representative shall have received an opinion, dated such Closing Date, of Xxxxxx and Calder, BVI counsel to each of the TrustSelling Shareholders, addressed to the Underwriters, dated on or before the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the First Closing Date, substantially in the form attached hereto as Annex G.
(j) The Representative shall have received an opinion, dated such Closing Date, of Xxxxx Day, Hong Kong counsel to the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial ServicesCompany, addressed to the Underwriters, dated on or before the First Closing Date and Date, substantially in the form and substance satisfactory to the attached hereto as Annex H.
(k) The Representative and shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel to the Underwriters.
(i) On the , such opinion or opinions, dated such Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale the validity of the Offered Securities delivered on such Closing Date, the Registration Statements, the ADS Registration Statement, the Prospectus and nonconsolidation bankruptcy other related matters as the Representative may require, and (ii) certain security interest the Selling Shareholders and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may rely as to the incorporation of the Company and all other matters governed by Cayman Islands laws upon the opinion of Xxxxxx and Calder.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLPfrom Haiwen & Partners, PRC counsel to the Indenture Trustee, addressed to the Underwriters, such opinion or opinions, dated the such Closing Date and satisfactory in form and substance Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to the Underwriterspass upon such matters.
(m) On the Closing Date, the Representative The Depositary shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel furnished or caused to be furnished to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and Underwriters a certificate satisfactory in form and substance to the Representative and counsel of one of its authorized officers with respect to the Underwritersdeposit with it of the Ordinary Shares represented by the ADSs against issuance of the ADRs evidencing the ADSs, the execution, issuance, countersignature and delivery of the ADRs evidencing the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably request.
(n) The Representative Company and the Depositary shall have received an opinion executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to Ordinary Shares and the Underwriters, dated issuance of the Closing Date and satisfactory ADSs in form and substance to accordance with the Representative and counsel to the UnderwritersDeposit Agreement.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the such Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services chief executive officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each chief financial officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed and distributed to any Underwriter; and, subsequent to the date of the most recent financial statements in the Prospectus, there has not been any material adverse change in or affecting the condition (financial or other), business, properties, business prospects or results of operations of the Company or its subsidiaries.
(p) The Representative shall have received a certificate, dated such Closing Date, of an authorized representative of each Selling Shareholder in which such authorized representative, to the best of its knowledge after reasonable investigation, shall state that: the representations and warranties of such Selling Shareholder in this Agreement are true and correct; and the Selling Shareholders have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(q) The Custodian shall have delivered to the Representative a letter stating that it will deliver to each Selling Shareholder a United States Treasury Department Form 1099 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) on or before January 31 of the year following the date of this Agreement.
(r) On or prior to the First Closing Date, the Representative shall have received from the Custodian United States Treasury Department Form W-9 or the applicable Form W-8 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof) properly completed and executed by all the Selling Shareholders.
(s) On or prior to the date of this Agreement, the Representative shall have received lockup letters from each of officers and directors of the Company and each registered shareholder of the Company, in each case substantially in the form attached hereto as Annex I.
(t) Each Class of Notes The ADSs shall have been rated approved to be quoted on the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing ProspectusNasdaq National Market.
(u) The Representative shall have received, from each of BMW Financial ServicesOn or prior to the First Closing Date, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which Offered Securities shall be attached certified copies eligible for clearance and settlement through the facilities of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityDTC.
(v) All requirements The Company and the Selling Shareholders shall have obtained all consents, approvals, authorizations or orders of, or made all filings with, any governmental agency or body or any court or any stock exchange, domestic or foreign, required to be obtained or made by the Company and the Selling Shareholders for the consummation of Rules 15Ga-2 the transactions contemplated by this Agreement and 17g-10 under the Exchange Act have been Deposit Agreement in connection with the issuance and will be timely complied withsale of the Offered Securities.
(w) The Depositor shall provide or cause to be provided to Selling Shareholders and the Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel shall reasonably request. The Representative may waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Actions Semiconductor Co., Ltd.)
Conditions of the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Class A Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Transferor, ALFI L.P. and World Omni herein, to the accuracy of the statements of the respective officers of the Depositor Transferor, ALFI L.P. and BMW Financial Services World Omni made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor, ALFI L.P. and BMW Financial Services World Omni of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On (i) the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI CertificateRepresentative, the Notes ALFI L.P. and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Transferor shall have received a fully executed copy letter or letters, dated the date of delivery thereof or(which, with respect if the Effective Time is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as amendment or post-effective amendment to the registration statement to be filed shortly prior to the Effective Time), of Arthxx Xxxexxxx XXX ("Arthxx Xxxexxxx") xonfirming that they are independent public accountants within the meaning of the date of Act and the Preliminary Prospectus, Rules and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the draft or drafts to which the Representative has previously agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that for the Underwriters and (ii) on the Closing Date, the Representative, ALFI L.P. and the Transferor shall have received a letter or letters, dated as of the Accountant’s Due Diligence Report at or Closing Date, from Arthxx Xxxexxxx, xxdating each letter delivered pursuant to clause (i) above, in form and substance satisfactory to the Representative and counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusdate of this Agreement, the ProspectusEffective Time shall be the date of execution and delivery of this Agreement, each Free Writing Prospectus listed on Schedule III hereto or approved in writing the next business day after the date of this Agreement or such later date as shall have been consented to by the Depositor Representative. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor, ALFI L.P., World Omni or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion certificates of the President, any Vice President or opinions the Treasurer or any Assistant Treasurer of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none the WOLSI General Partner on behalf of the DepositorTransferor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes ALFI General Partner on behalf of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters ALFI L.P. and (iiiii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLPWorld Omni, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and each dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestin which such officer shall state, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course case of business(A) the Transferor and ALFI L.P., except as set forth in or contemplated in the Prospectus that (exclusive of any supplement thereto), (ii1) the representations and warranties of the Depositor, BMW Financial Services and the UTI BeneficiaryTransferor or ALFI L.P., as the case may be, in this Agreement and the Transaction Documents each Basic Document to which it is a party, party and in this Agreement are true and correct, (iii2) to the Depositorbest knowledge of such officer after reasonable investigation, BMW Financial Services and the UTI BeneficiaryTransferor or ALFI L.P., as the case may be, has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
Commission and (t3) Each Class subsequent to the date of Notes shall have this Agreement, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transferor or ALFI L.P., as the case may be, except as set forth in or contemplated by the hired NRSROs specified Prospectus and (B) World Omni, that (1) the representations and warranties of World Omni in each Basic Document to which it is a party and in this Agreement are true and correct, (2) to the best knowledge of such officer after reasonable investigation, World Omni has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and (3) subsequent to the date of this Agreement, there has been no material adverse change in the Ratings Free Writing condition, financial or otherwise, or in the earnings, business affairs or business prospects of World Omni except as set forth in or contemplated by the Prospectus.
(ud) The Representative shall have received a certificate, dated the Closing Date, of a Vice President or another duly authorized officer of the Insurer, satisfactory in form and substance to the Representative and counsel to the Underwriters, substantially to the effect that, among other things, (i) the information provided by the Insurer for use in the Registration Statement and the Prospectus is true and correct in all material respects and (ii) since the date of the financial statements of the Insurer included in the Prospectus, there has been no change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Insurer that would have a material adverse effect on the ability of the Insurer to meet its obligations under the Residual Value Insurance Policy.
(e) The Representative shall have received:
(1) The favorable opinions of (A) Willxxxx & Xonnxxxx, from xxunsel to the Transferor, ALFI L.P. and World Omni, (B) Hand Arenxxxx, X.L.C., special Alabama counsel to the Transferor, ALFI L.P. and World Omni, (C) English, McCaxxxxx & X'Brxxx, X.A., special Florida counsel to the Transferor, ALFI L.P. and World Omni, (D) McDexxxxx, Xxll & Emerx, special Illinois and New York counsel to the Transferor, ALFI L.P. and World Omni, (E) Richxxxx, Xxxxxx & Xinger, special Delaware counsel to the Transferor, ALFI L.P. and World Omni, (F) Burbxxx & Xeddxxx X.X.C., special Georgia counsel to the Transferor, ALFI L.P. and World Omni and (G) Kilpxxxxxx Xxxxxxxx XXX, special North Carolina counsel to the Transferor, ALFI L.P. and World Omni, in each of BMW Financial Servicescase dated the Closing Date and satisfactory in form and substance to the Representative and counsel for the Underwriters, and, in the UTI Beneficiary and aggregate substantially to the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: effect that:
(i) certificate World Omni has been incorporated under the Florida General Corporation Act, is current in the payment of formationfees due to the Florida Department of State and its status is active; World Omni has corporate power and authority to own, lease and operate its properties, to conduct its business as presently conducted and to enter into and perform its obligations under this Agreement, each Partnership Agreement and each Basic Document to which it is a party; to the best of their knowledge, World Omni is duly qualified as a foreign corporation to transact business and is in good standing in Alabama, Georgia, North Carolina and South Carolina; and, to the best of their knowledge, all of the issued and outstanding capital stock of WOLSI and ALFI is owned by World Omni, free and clear of Liens.
(ii) limited liability company agreement or limited partnership agreementEach of WOLSI and ALFI has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties, to conduct its business as applicabledescribed in the Registration Statement and to enter into and perform its obligations under the related Partnership Agreement and each Basic Document to which it is a party; to the best of such counsel's knowledge and information, each of WOLSI and ALFI is duly qualified as a foreign corporation to transact business in Florida and Alabama; and the shares of issued and outstanding capital stock of each of WOLSI and ALFI have been duly authorized and validly issued and are fully paid and non-assessable.
(iii) applicable resolutions authorizing Each of the transactions contemplated hereby Transferor and ALFI L.P. is duly qualified and registered as a foreign partnership to transact business and is in the Transaction Documents good standing in Alabama and Florida.
(iv) designation of incumbency of each such entityThis Agreement has been duly authorized, executed and delivered by WOLSI, as the WOLSI General Partner, ALFI, as the ALFI General Partner and World Omni.
(v) All requirements The Origination Trust has been qualified as a business trust under applicable Alabama law and what is commonly known as a business trust under Chapter 609 of Rules 15Ga-2 the Florida Statutes, and 17g-10 all filings required to be made in respect of the Origination Trust's status as a business trust under the Exchange Act laws of the States of Alabama and Florida have been made and will be timely complied withare in full force and effect on the Closing Date.
(wa) The Depositor shall provide or cause to be Notes are in due and proper form, all conditions precedent provided for in the Indenture relating to the Representative conformed copies issuance, authentication and delivery of such opinionsthe Notes have been complied with and the Notes have been duly and validly authorized and, certificateswhen executed, letters issued, authenticated and documents as delivered pursuant to the Representative or counsel Indenture, and, in the case of the Class A Notes, when delivered to the Underwriters against payment of the consideration set forth in this Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Indenture.
(b) The Transferor Certificate is in due and proper form, all conditions precedent provided for in the Securitization Trust Agreement relating to the issuance, authentication and delivery of the Transferor Certificate have been complied with and the Transferor Certificate has been duly and validly authorized and, when executed, issued, authenticated and delivered pursuant to the Securitization Trust Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Securitization Trust Agreement.
(vii) Each Partnership Agreement and each Basic Document to which the Transferor, WOLSI, ALFI, ALFI L.P. and World Omni is a party has been duly authorized, executed and delivered by the Transferor, WOLSI, ALFI, ALFI L.P. and World Omni, as the case may reasonably requestbe, and, assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute the legal, valid and binding agreement of such entity enforceable against such entity in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting enforcement of creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (In rendering such opinion as to the enforceability of a Basic Document, counsel shall state that in the event of a conflict of law arising under such Basic Document, the governing law of such Basic Document will apply without regard to any otherwise applicable principles of conflicts of laws in the related state).
(viii) To the best knowledge and information of such counsel, (A) there are no legal or governmental proceedings pending or threatened that are required to be disclosed in the Registration Statement other than those disclosed therein and (B) all pending legal or governmental proceedings to which the Transferor, WOLSI, ALFI, ALFI L.P., the Origination Trustee (in its capacity as trustee of the Origination Trust) or World Omni is a party or to which any of their respective properties or assets is subject that are not described in the Registration Statement, including ordinary routine litigation incidental to the business of such entity, are, considered in the aggregate with respect to the Transferor, WOLSI, ALFI, ALFI L.P., the Origination Trustee (in its capacity as trustee of the Origination Trust) or World Omni as the case may be, not material.
(ix) The statements in the Prospectus under the captions "Summary", "Risk Factors", "Description of the Notes", "Security for the Notes", "The Residual Value Insurance Policy" and "Additional Document Provisions", insofar as such statements purport to summarize certain terms or provisions of the
Appears in 1 contract
Samples: Underwriting Agreement (World Omni Lease Securitization L P /De/)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be hereunder are subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunderprovisions hereof, and to the following additional conditions precedent:
(a) On The Underwriters shall have received, on the date hereof and on the Closing Date, each letters dated the respective dates of the Transaction Documents, the SUBI Certificate, the Notes delivery thereof and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative Underwriters from each of Ernst & Young LLP and Deloitte & Touche LLP, independent public accountants to the Company, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, General Disclosure Package and the Prospectus; provided that the letter delivered on the date hereof shall use a “cut-off date” not earlier than three business days prior to the date hereof and the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which in the judgment of the Representatives is material and adverse to the Company and its subsidiaries taken as one enterprise and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any material and adverse change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to have a material adverse effect on the success of the proposed issue, sale or distribution of the Offered Securities; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) The Underwriters shall have received on the Closing Date an opinion and a 10b-5 statement of Hunton Xxxxxxx Xxxxx LLP, counsel for the Company, dated the Closing Date and addressed to the Underwriters, to the effect set forth in Exhibit B hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxx X. Xxxxx III, Esq., Senior Vice President, Corporate Counsel and Secretary of the Company, dated the Closing Date and addressed to the Underwriters to the effect set forth in Exhibit C hereto.
(e) The Representative Underwriters shall have received on and as of the Closing Date an opinion or opinions and 10b-5 statement of Xxxxxx, Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative Representatives may reasonably request, and such counsel shall have received such papers documents and information as they may reasonably request to enable such opinions or negative assurance letters them to be based pass upon such matters.
(rf) The Representative Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the such Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the DepositorPresident, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Executive Officer or any Vice President of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial Company in which such officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, shall state that (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its their part to be performed or satisfied hereunder at or prior to the such Closing Date and Date; (ivii) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has or any notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceedings proceeding for that such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or are pending threatened and (iii) subsequent to the respective dates of the most recent financial statements in the Exchange Act Reports included in the General Disclosure Package, there has been no material adverse change, nor any development or are contemplated by event involving a prospective material adverse change, in the Commissioncondition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(tg) Each Class of Notes The Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b); the final term sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been rated filed with the rating specified in Commission within the Ratings Free Writing Prospectus applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the hired NRSROs specified in effectiveness of the Ratings Free Writing ProspectusRegistration Statement or any notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened.
(uh) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which Offered Securities shall be attached certified copies of the: eligible for clearance and settlement through DTC.
(i) certificate The Representatives shall have received on and as of formationa recent date relative to the Closing Date satisfactory evidence of the good standing of the Company in writing or any standard form of telecommunication, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing from the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityappropriate governmental authorities.
(vj) All requirements of Rules 15Ga-2 The Company shall have furnished or caused to be furnished to the Underwriters such further certificates and 17g-10 under documents as the Exchange Act Underwriters or their counsel shall have been and will be timely complied withreasonably requested.
(wk) The Depositor Company shall provide not have failed at or cause prior to the Closing Date to have performed or complied in all material respects with any of their agreements herein contained and required to be provided performed or complied with by them hereunder at or prior to the Representative Closing Date.
(l) The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Underwriters reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Offered Securities and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Offered Securities.
Appears in 1 contract
Samples: Underwriting Agreement (General Motors Financial Company, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when madehereto, to the performance by the Depositor Seller and BMW Financial Services VW Credit of their obligations hereunder, and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 7(h) hereofSecurities Act; on or prior to and, before the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller or BMW Financial Servicesthe Underwriters, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law.
(b) On or before the Closing Date, you shall have received letters, dated as of the date hereof and as of the Closing Date, respectively, of PricewaterhouseCoopers LLP, independent certified public accountants, substantially in the form of the drafts to which you have agreed previously and otherwise substantially in form and substance reasonably satisfactory to you and your counsel.
(c) After the date hereof, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Seller, VW Credit or VWA, and their respective subsidiaries, taken as a whole, that, in your judgment, is material and adverse and that makes it impracticable to market the Notes on the terms and in the manner contemplated in the Prospectus.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPAxxxx X. Xxxxxx, counsel to the Indenture TrusteeSeller and VW Credit, addressed to you and the UnderwritersIndenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representative you and your counsel.
(i) Mxxxx, Bxxxx, Rxxx & Maw LLP, special counsel to the Underwriters.
(m) On Seller, VW Credit and the Issuer, shall have delivered an opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative Representatives, with respect to the general corporate matters, the validity of the Notes, the Registration Statement, the Prospectus Supplement and the Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement, the Prospectus Supplement and the Prospectus; and (ii) Mxxxx, Bxxxx, Rxxx & Maw LLP, special counsel to the Seller, VW Credit and the Issuer, shall have delivered a negative assurance letter with respect to the most recent Preliminary Prospectus delivered prior to the Time of Sale.
(f) You shall have received an opinion addressed to you, the favorable opinion Seller and the Servicer of XxxxxxxxExxxx, Xxxxxx and Finger, P.A.& Mxxxxx XXX, counsel to the Vehicle Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative you and counsel to the Underwritersyour counsel.
(ng) The Representative You shall have received an opinion addressed to you, the Seller and the Servicer of XxxxxxxxRxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed Trustee and special Delaware counsel to the UnderwritersSeller, the Origination Trust, the SUBI Trustee and the Issuer, dated the Closing Date and satisfactory in form and substance to the Representative you and counsel to the Underwritersyour counsel.
(oh) The Representative You shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, certificates dated the Closing Date and satisfactory in form and substance to of any two of the Representative and counsel to the Underwriters.
(p) On the Closing DatePresident, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Chief Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, PresidentOfficer, any Vice President, the TreasurerController, any Assistant the Treasurer, the principal financial officerSecretary, Assistant Treasurer or the principal accounting officer or any Assistant Secretary of the foregoing Seller and VW Credit in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, shall state that: (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (iiA) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, made by such entity contained in this Agreement and the Transaction Documents to which it is a party, and this Agreement are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, that such party has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied at under such agreements on or prior to before the Closing Date Date, and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the CommissionCommission or, to the knowledge of such officers, any authority administering state securities or blue sky laws and (B) since September 30, 2006 there has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition, financial or otherwise, or in the earnings, business or operations of the Issuer, the Seller or the Servicer except as disclosed to you in writing prior to the date of the Preliminary Prospectus.
(ti) Each You shall have received evidence satisfactory to you that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in all applicable governmental offices reflecting (A) the transfer of the interest of VW Credit in the Receivables to the Seller pursuant to the Purchase Agreement, (B) the transfer of the interest of the Seller in the Receivables thereof to the Issuer pursuant to the Sale and Servicing Agreement, and (C) the grant by the Issuer to the Indenture Trustee under the Indenture of a security interest in the interest of the Issuer in the Receivables.
(j) The Class of A-1 Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by highest short-term rating category and the hired NRSROs specified Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have been rated in the highest long-term rating category by at least Standard and Poor’s Ratings Free Writing Prospectus.Services, a division of The MxXxxx-Xxxx Companies, Inc., or Mxxxx’x Investors Service, Inc.
(uk) The Representative You shall have received, from each of BMW Financial Services, the UTI Beneficiary VW Credit and the DepositorSeller, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formationorganizational documents, (ii) limited liability company agreement or limited partnership agreement, as applicable, applicable resolutions and (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and . The Seller will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative you conformed copies of such opinions, certificates, letters and documents as the Representative you or your counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Volkswagen Auto Loan Enhanced Trust 2007-1)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made of the Company and the applicable Selling Stockholders herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the applicable Selling Stockholders of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representatives shall have received letters, dated, respectively, the date hereof and each Closing Date, each of PricewaterhouseCoopers LLP confirming that it is a registered public accounting firm and independent public accountants within the meaning of the Transaction Documents, the SUBI Certificate, the Notes Securities Laws and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeform of Schedule B hereto.
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Additional Registration Statement (if any) is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of time the Prospectus is printed and covering procedures performed as of the date of the Prospectusdistributed to any Underwriter, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters or shall have received the Accountant’s Due Diligence Report occurred at or prior such later time as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representatives. The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market Offered Securities; (ii) any downgrading in the rating of any indebtedness or debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any indebtedness or debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in either U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it, in the judgment of the Representatives, impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of Cxxxxxx Xxxxxx & Mxxxx LLP, counsel for the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the UnderwritersCompany, dated the Closing Date and in a form and substance reasonably satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated such Closing Date, of Steptoe & Jxxxxxx PLLC, intellectual property counsel for the Closing Date and addressing corporateCompany, enforceability and securities matters in a form reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative Representatives shall have received an opinion or opinions opinions, each dated such Closing Date, of Xxxxxx, Xxxxx Cxxxxxx Xxxxxx & Bockius Mxxxx LLP, counsel to for each of the DepositorSelling Stockholders other than Gxxxxxx, BMW Financial Services and the TrustSachs & Co., addressed in a form reasonably satisfactory to the Underwriters. The Representatives shall also have received opinions, each dated such Closing Date, of Fried, Frank, Harris, Sxxxxxx & Jxxxxxxx LLP, counsel for Gxxxxxx, Sachs & Co. in its capacity as a Selling Stockholder, in a form reasonably satisfactory to the Underwriters. Notwithstanding the foregoing, in the case of any Optional Closing Date and addressing the following issues (i) none of the DepositorDate, the Trust or Representatives shall receive opinions only for the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActSelling Stockholders that are selling Optional Securities on such Optional Closing Date.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx Shearman & Bockius Sterling LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable such opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwritersor opinions, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related such matters as the Representative Representatives may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(rh) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the such Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each an executive officer of the Depositor, BMW Financial Services Company and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge and after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) investigation shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act; and, subsequent to the respective dates of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate. In addition, the Representatives shall have received a certificate, dated such Closing Date, from the Company in which the Company shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of the Company’s knowledge and after reasonable investigation, are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act; and, subsequent to the respective dates of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(ti) Each Class of Notes The Representatives shall have been rated the rating specified received a certificate, dated such Closing Date, of an appropriate officer (in the Ratings Free Writing Prospectus by case of the hired NRSROs specified Estate of Jxxx X. Xxxxxx and Gxxxxxx, Sxxxx & Co.) or Mxxxxxx X. Xxxxxx, Bxxxx Xxxx or Kxxxxxx X. Xxxxxxx, as the case may be, in which such officer or Mxxxxxx X. Xxxxxx, Bxxxx Xxxx or Kxxxxxx X. Xxxxxxx shall state that the representations and warranties of such Selling Stockholder in this Agreement are true and correct and that such Selling Stockholder has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date. Notwithstanding the foregoing, in the Ratings Free Writing Prospectuscase of any Optional Closing Date, the Representatives shall receive certificates only for the Selling Stockholders that are selling Optional Securities on such Optional Closing Date.
(uj) The Representative On or prior to the date hereof, the Representatives shall have received, received lockup letters from each Selling Stockholder, executive officer, director and certain other stockholders of BMW Financial Services, the UTI Beneficiary and the Depositor, Company set forth on Schedule C hereto in a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided form reasonably satisfactory to the Representative Underwriters. The Company and each Selling Stockholder will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm Notes will be on the Closing Date and the Additional Notes on any Option Closing Date are subject to the accuracy fulfillment of each of the representations and warranties made herein, following conditions on or prior to the accuracy of the statements of officers of the Depositor Closing Date and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedenteach Option Closing Date:
(a) On All the representations and warranties of the Company contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, each as applicable. On and prior to the Closing Date or Option Closing Date, as applicable, the Company shall have performed or complied in all material respects with all of the Transaction Documents, the SUBI Certificate, the Notes agreements herein contained and the Certificates shall have been duly authorized, executed and delivered required to be performed or complied with by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect Company at or prior to the Notes and CertificatesClosing Date or the Option Closing Date, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeas applicable.
(b) Both If the Registration Statement is not effective at or before the date hereof, time of the execution and on or before the Closing Datedelivery of this Agreement, the Representative Registration Statement shall have received three lettersbecome effective (or, one relating to the 2021if a post-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication effective amendment is required to be filed with pursuant to Rule 430A under the Commission Act, such post-effective amendment shall have become effective) not later than 9:00 A.M., New York City time, on the day following the date of this Agreement or such later time as the Representatives may approve in writing or, if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been filed with as required by the Commission in accordance with Act, if necessary; and at the Rules Closing Date and Regulations and Section 7(h) hereof; on or prior to the each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before or, to the knowledge of the Depositor Underwriters or BMW Financial Servicesthe Company, shall be contemplated threatened by the Commission; every request for additional information on the part of the Commission shall have been complied with to the Underwriters' satisfaction; no stop order suspending the sale of the Notes and/or the Conversion Shares in any jurisdiction referred to in Section 5(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or, to the best knowledge of the Underwriters or the Company, threatened.
(c) The Notes and the Conversion Shares shall have been qualified for sale (or an exemption from such qualification shall have been secured) under the Blue Sky laws of such states as shall have been specified by the Representatives.
(d) On The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Notes and the Conversion Shares hereunder, the validity and form of the certificates representing the Notes, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment, and no Underwriter shall have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of material fact, or omits to state a fact that in the Representatives' reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material change, or any development involving a prospective material change, in or affecting particularly the business or properties of the Company or any Subsidiary, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Representatives, makes it impractical or inadvisable to proceed with the public offering or purchase of the Notes as contemplated hereby, or (ii) any event described in clauses (ii)-(vii) of the second paragraph of Section 9 hereof.
(f) The Underwriters shall have received an opinion (satisfactory to them and their counsel) dated the Closing Date or the Option Closing Date, as the Representative case may be, of Xxxxxxx & Xxxxxxx LLP, special counsel for the Indenture Trustee, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-1.
(g) The Underwriters shall have received an opinion (satisfactory to them and their counsel) dated the favorable opinion Closing Date or opinions the Option Closing Date, as the case may be, of in-house Stoel Rives LLP, counsel for the Company, in form and substance satisfactory to the Depositor Representatives and BMW Financial Services addressed attached hereto as Exhibit B-2.
(h) The Underwriters shall have received an opinion (satisfactory to the Underwriters and their counsel) dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-3.
(i) The Underwriters shall have received an opinion of Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representative Representatives and counsel to the Underwritersattached hereto as Exhibit B-4.
(ej) The Representative Underwriters shall have received an opinion or opinions received, in connection with the execution of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services this Agreement and the Trust, addressed to the Underwriters, dated on the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the each Option Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx a "cold comfort" letter from Deloitte & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the UnderwritersTouche LLP, dated the Closing Date and as of each such date in form and substance satisfactory to the Representative and counsel Representatives with respect to the Underwriters.
(i) On financial statements and certain financial information and data contained in the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust Registration Statement and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the UnderwritersProspectus.
(k) On the Closing Date, the Representative The Underwriters shall have received from the favorable opinion or opinions Company a certificate, signed by Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx in their capacities as the President and Chief Operating Officer of Xxxxxxthe Company and Vice President and Chief Financial Officer of the Company, Xxxxx & Xxxxxxx LLPrespectively, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date or Option Closing Date, with respect as applicable, to certain securities law issues and other related matters as the Representative may reasonably requesteffect that:
(i) such officer does not know of any Proceedings instituted, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions threatened or negative assurance letters contemplated against the Company or any Subsidiary of a character required to be based upon disclosed in the Prospectus that are not so disclosed; such matters.officer does not know of any material contract required to be filed as an exhibit to the Registration Statement which is not so filed;
(rii) The Representative shall have received copies such officer has carefully examined the Registration Statement and the Prospectus and all amendments or supplements thereto and, in such officer's opinion, such Registration Statement or such amendment as of each opinion its effective date and as of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to and the effect that the Underwriters may rely on each Prospectus or such opinion to the same extent as though such opinion was addressed to each supplement as of its date.
(s) Each date and as of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the effect that statements therein not misleading and, in such officer's opinion, since the signer effective date of such certificate has reviewed the Registration Statement, no event has occurred or information become known that should have been set forth in an amendment to the Prospectus, any supplements Registration Statement or a supplement to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there which has not been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as so set forth in such amendment or contemplated in the Prospectus supplement;
(exclusive of any supplement thereto), (iiiii) the representations and warranties of the Depositor, BMW Financial Services Company set forth in Section 6 of this Agreement are true and correct as of the UTI Beneficiarydate of this Agreement and as of the Closing Date or the Option Closing Date, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date and or the Option Closing Date, as the case may be; and
(iv) (in the case Commission has not issued an order preventing or suspending the use of the Depositor and BMW Financial Services only) that Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and issued; and, to the knowledge of the respective officers, no proceedings for that purpose have been instituted or are pending or are contemplated by under the CommissionAct. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts set forth in said certificate.
(tl) Each Class of The Company's common stock shall continue to be listed on the Nasdaq National Market. The Notes to be sold by the Company at the Closing Date and the Option Closing Date shall have been rated duly listed, subject to notice of issuance, on the rating specified in Nasdaq SmallCap Market; the Ratings Free Writing Prospectus by Conversion Shares shall have been duly listed, subject to otice of issuance, on the hired NRSROs specified in the Ratings Free Writing ProspectusNasdaq National Market.
(um) The Representative Company and each of the other parties to the [New Credit Agreement] [or: the Existing Credit Agreement Amendments] shall have receivedentered into the [New Credit Agreement] [or: the Existing Credit Agreement Amendments]and all conditions precedent to the effectiveness thereof shall have been satisfied or waived, from and the Company shall have provided to each of BMW Financial Services, the UTI Beneficiary Representatives and counsel to the Depositor, a certificate executed by a secretary or assistant secretary thereof Representatives copies of all material closing documents delivered to which the parties relating to the [New Credit Agreement] [or: the Existing Credit Agreement Amendments]. The Representatives and their counsel shall be attached certified copies satisfied with the form and substance of thethe [New Credit Agreement] [or: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and Existing Credit Agreement Amendments] in the Transaction Documents and (iv) designation of incumbency of each such entitytheir sole discretion.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(wn) The Depositor Underwriters and Irell & Xxxxxxx LLP, counsel for the Underwriters, shall provide have received on or cause to be provided before the Closing Date or the Option Closing Date, as the case may be, such further documents, opinions, certificates and schedules or instruments relating to the Representative conformed copies business, corporate, legal and financial affairs of such opinions, certificates, letters and documents the Company as the Representative or counsel to Underwriters and they shall have reasonably requested from the Underwriters may reasonably requestCompany.
Appears in 1 contract
Samples: Underwriting Agreement (Praegitzer Industries Trust I)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company and the Selling Stockholders herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Stockholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a1) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Representatives shall have received a fully executed copy letter, dated the date of delivery thereof or(which, with respect if the Effective Time of the Initial Registration Statement is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time of the Initial Registration Statement is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating amendment or post-effective amendment to the Prospectusregistration statement to be filed shortly prior to such Effective Time), dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Deloitte & Touche LLP substantially in the form of the drafts to which the Representative has agreed previously and Annex 6(a)(1) hereto, or otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.you;
(e2) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersletter, dated the Closing Date satisfactory in form and substance date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the Representative execution and counsel delivery of this Agreement, shall be on or prior to the Underwriters.
(h) On date of this Agreement or, if the Closing Date, Effective Time of the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed Initial Registration Statement is subsequent to the Underwritersexecution and delivery of this Agreement, dated shall be prior to the Closing Date and filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of KPMG LLP substantially in the form of Annex 6(a)(2) hereto, or otherwise in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.you
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Company with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Xxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPX. Xxxxx III, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Indenture Trustee, addressed Company) (or other appropriate counsel reasonably satisfactory to the UnderwritersRepresentatives, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and which may include Duke Energy Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the Underwriters may rely on each such opinion laws of the State of North Carolina, with power and authority (limited liability company and other) to own its properties and conduct its business as described in the same extent as though such opinion was addressed Pricing Disclosure Package and the Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Company is duly qualified to do business in each jurisdiction in which the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, Company.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCompany.
(wvi) The Depositor issue and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles of Organization or the Operating Agreement, the North Carolina Limited Liability Company Act or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company is a party or by which it or its property is bound or to which any of its property or assets is subject or any instrument filed or incorporated by reference as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2019 or any subsequent Quarterly Report on Form 10-Q or Form 10-Q/A of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2019 or identified in Annex A to this Agreement, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes.
(vii) The North Carolina Utilities Commission and the Public Service Commission of South Carolina have issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect and the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to this Agreement.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and qualified under the 1939 Act, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms.
(ix) The Notes have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(x) No consent, approval, authorization, order, registration or qualification of or with any federal, North Carolina or South Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and (ix) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and by general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement, as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that such counsel does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws and the laws of the State of South Carolina and the State of New York and may rely (i) as to all matters of the law of the State of South Carolina on the opinion of Xxxxx X. Xxxx, letters Esq., Associate General Counsel of Duke Energy Business Services LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Company), or other appropriate counsel reasonably satisfactory to the Representatives, which may include Duke Energy Corporation’s other “in-house” counsel and documents (ii) as to all matters of the Representative or law of the State of New York on the opinion letter of Hunton Xxxxxxx Xxxxx LLP being delivered to the Underwriters pursuant to Section 6(f) of this Agreement. Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by such counsel to be reliable.
(f) You shall have received an opinion of Hunton Xxxxxxx Xxxxx LLP, counsel to the Underwriters Company, dated the Closing Date, to the effect that:
(i) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(ii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby, except for such consents, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(iii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(iv) The execution and delivery by the Company of this Agreement and the Indenture and the consummation by the Company of the transactions contemplated thereby, including the issuance and sale of the Notes, will not violate or conflict with, or result in any contravention of, any Applicable Laws of the States of North Carolina and New York.
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting (Conflicts of Interest),” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.
(vi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(vii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(ix) The Notes have been duly authorized and executed by the Company, and when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of the Agreement and the Indenture, the Notes will constitute the valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Energy Progress, Llc.)
Conditions of the Obligations of the Underwriters. The obligations obligation of ------------------------------------------------- the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Seller and World Omni herein, to the accuracy of the statements of the respective officers of the Depositor Seller and BMW Financial Services World Omni made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services World Omni of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes Representative and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy thereof orletter, with respect to dated the Notes and Certificatesdate thereof, a conformed copy thereof. The Transaction Documents, of Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") confirming that they are independent public accountants within the SUBI Certificate, meaning of the Notes Act and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, Rules and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the draft or drafts to which the Representative has previously agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to for the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller, World Omni or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none certificates of the DepositorPresident, the Trust any Vice President or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes Treasurer or any Assistant Treasurer of each of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform Seller and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from XxxxxxWorld Omni, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and each dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestin which such officer shall state, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course case of business, except as set forth in or contemplated in (A) the Prospectus Seller that (exclusive of any supplement thereto), (ii1) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents each Basic Document to which it is a party, are party and in this Agreement were true and correctcorrect as of the date therein indicated, (iii2) to the Depositorbest knowledge of such officer after reasonable investigation, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
Commission and (t3) Each Class subsequent to the date of Notes shall have this Agreement, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Seller, except as set forth in or contemplated by the hired NRSROs specified Prospectus and (B) World Omni, that (1) the representations and warranties of World Omni in each Basic Document to which it is a party and in this Agreement were true and correct as of the date therein indicated, (2) to the best knowledge of such officer after reasonable investigation, World Omni has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and (3) subsequent to the date of this Agreement, there has been no material adverse change in the Ratings Free Writing condition, financial or otherwise, or in the earnings, business affairs or business prospects of World Omni except as set forth in or contemplated by the Prospectus.
(ud) The Representative shall have received:
(1) The favorable opinion of Xxxxxxxx & Xxxxx, from each of BMW Financial Servicescounsel to the Seller and World Omni, dated the UTI Beneficiary Closing Date and satisfactory in form and substance to the DepositorRepresentative and counsel for the Underwriters, a certificate executed by a secretary or assistant secretary thereof substantially to which shall be attached certified copies of the: the effect that:
(i) certificate When paid for by the Underwriters in accordance with the terms of formationthis Agreement (assuming the due authorization, execution and delivery of the Indenture by the Indenture Trustee and the Trust, the due execution of the Notes by the Trust, and the due authentication and delivery of the Notes by the Indenture Trustee in accordance with the Indenture), the Notes will constitute the valid and binding obligations of the Trust, and will be enforceable against the Trust in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to creditors rights generally, and to general principles of equity including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and will be validly issued and outstanding and entitled to the benefits provided by the Indenture.
(ii) limited liability company agreement Assuming the due authorization of this Agreement and each Basic Document to which World Omni is a party, World Omni has duly executed and delivered this Agreement and each such Basic Document. Assuming the due authorization, execution and delivery thereof by the parties thereto (other than due execution and delivery by World Omni), this Agreement and each of the Basic Documents (other than the Trust Agreement) to which the Seller, World Omni or limited partnership agreementthe Trust is a party constitutes the legal, valid and binding obligation of the Seller, World Omni or the Trust, as applicable, and is enforceable against the Seller, World Omni or the Trust, as applicable, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors' rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set-off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(iii) applicable resolutions authorizing To the transactions contemplated hereby knowledge of such counsel, there is no legal or governmental proceeding that is pending or threatened against the Seller that has caused such counsel to conclude that such proceeding is required by Item 103 of Regulation S-K to be described in the Prospectus but that is not so described.
(iv) The statements in the Prospectus Supplement under the headings "Summary of Terms," "Risk Factors," "Description of the Notes" and "Description of the Trust Documents" and in the Transaction Base Prospectus under the headings "Risk Factors," "Description of the Securities," "Description of the Notes" and "Description of the Trust Documents" insofar as such statements purport to summarize certain terms or provisions of the Notes and the Basic Documents and (iv) designation provide a fair summary of incumbency of each such entityprovisions.
(v) All requirements of Rules 15Ga-2 and 17g-10 The statements in the Prospectus Supplement under the Exchange Act headings "Federal Income Tax Consequences" and "ERISA Considerations" and in the Base Prospectus under the headings "Some Legal Aspects of the Receivables," "Federal Income Tax Consequences" and "ERISA Considerations" to the extent such statements relate to the Notes and purport to summarize matters of federal law or legal conclusions with respect thereto have been reviewed by such counsel and will be timely complied withare correct in all material respects.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (World Omni Auto Receivables LLC)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Corporation herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Corporation made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Corporation of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Corporation with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and the Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Corporation with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Corporation or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Mxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Corporation, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPRxxxxx X. Xxxxx III, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC (who in such capacity provides legal services to the Indenture TrusteeCorporation), addressed the service company subsidiary of the Corporation, or other appropriate counsel reasonably satisfactory to the Underwriters, dated Representatives (which may include the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) Each of Duke Energy Ohio, Inc., Progress Energy, Inc. and Piedmont Natural Gas Company, Inc., has been duly incorporated and is validly existing in good standing under the Underwriters may rely on each such opinion to laws of the same extent as though such opinion was addressed to each as jurisdiction of its dateincorporation and has the respective corporate power and authority and foreign qualifications necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus.
(sii) Each of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary shall have furnished Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary, its subsidiaries taken as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, whole.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCorporation.
(wvi) The Depositor execution, delivery and performance by the Corporation of this Agreement and the Indenture and the issue and sale of the Notes will not violate or contravene any of the provisions of the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject, which affects in a material way the Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Notes.
(vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms.
(viii) The Notes have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(ix) No consent, approval, authorization, order, registration or qualification is required to authorize, or for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters and except as required in Condition No. 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Such counsel shall provide state that nothing has come to his attention that has caused him to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to his attention that has caused him to believe that (i) the Registration Statement, including the Rule 430B Information, as of its effective date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that he does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws and may rely as to all matters of the laws of the States of South Carolina, letters Ohio, Indiana and documents Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Representative or Corporation and other sources believed by him to be reliable.
(f) You shall have received an opinion of Hunton Axxxxxx Xxxxx LLP, counsel to the Underwriters Corporation, dated the Closing Date, to the effect that:
(i) The Corporation has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware.
(ii) The Corporation has the corporate power and corporate authority to execute and deliver this Agreement and the Supplemental Indenture and to consummate the transactions contemplated hereby.
(iii) This Agreement has been duly authorized, executed and delivered by the Corporation.
(iv) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms.
(v) The Notes have been duly authorized and executed by the Corporation, and, when duly authenticated by the Trustee and issued and delivered by the Corporation against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Corporation, entitled to the benefits of the Indenture and enforceable against the Corporation in accordance with their terms.
(vi) The statements set forth (i) under the caption “Description of Debt Securities” (other than under the caption “Global Securities”) that are included in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(vii) The statements set forth under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(viii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Corporation or the consummation by the Corporation of the transactions contemplated hereby, except for such consents, approvals, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. “Governmental Approval” means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be made or obtained by the Corporation pursuant to Applicable Laws, other than any consent, approval, license, authorization, validation, filing, qualification or registration that may have become applicable as a result of the involvement of any party (other than the Corporation) in the transactions contemplated by this Agreement or because of such parties’ legal or regulatory status or because of any other facts specifically pertaining to such parties and “Governmental Authority” means any court, regulatory body, administrative agency or governmental body of the State of North Carolina, the State of New York or the State of Delaware or the United States of America having jurisdiction over the Corporation under Applicable Law but excluding the North Carolina Utilities Commission, the New York Public Service Commission and the Delaware Public Service Commission.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company and each Selling Stockholder herein, to the accuracy of the statements of Company officers of made in any certificates pursuant to the Depositor and BMW Financial Services made pursuant hereto when madeprovisions hereof, to the performance by the Depositor Company and BMW Financial Services each Selling Stockholder of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Representatives shall have received a fully executed copy letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, with respect if the Effective Time of the Initial Registration Statement is subsequent to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documentsshall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of PricewaterhouseCoopers LLP, confirming that they are independent public accountants within the SUBI Certificate, meaning of the Notes Act and the Certificates shall be applicable published Rules and Regulations thereunder and substantially in the forms heretofore provided to the Representativeform of Exhibit A hereto.
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Initial Registration Statement is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 p.m., dated New York time, on or about the date of this Agreement or such later date as shall have been consented to by the Preliminary Prospectus Representatives. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and covering procedures performed as delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the Preliminary Prospectustime the Prospectus is printed and distributed to any Underwriter, and one relating or shall have occurred at such later date as shall have been consented to by the Prospectus, dated on or about Representatives. If the date Effective Time of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of each Selling Stockholder, the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated threatened by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole which, in the judgment of a majority in interest of the Underwriters including the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities.
(d) On The Representatives shall have received an opinion, dated the Closing Date, of Hunton & Xxxxxxxx, special Virginia counsel for the Representative shall have received Company, in the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.attached hereto as Exhibit B.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and special New York counsel to Artal, in the Underwriters.form attached hereto as Exhibit C.
(f) The Representative Representatives shall have received an opinion or opinions opinion, dated the Closing Date, of Xxxxxx, Xxxxx & Bockius LLPXxxxxx X. Xxxxxxx, counsel to the DepositorCompany, BMW Financial Services and in the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so form attached hereto as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.Exhibit D:
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersan opinion, dated such Closing Date, of Xxxxxx & Xxxxxxxxx, Luxembourg counsel for Artal, in the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.attached hereto as Exhibit E.
(h) On the The Representatives shall have received an opinion, dated such Closing Date, the Representative shall have received the favorable opinion of XxxxxxxxBarkers, Xxxxxx & Finger, P.A., special Delaware British Virgin Islands counsel for Longisland International Limited, in the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.attached hereto as Exhibit F.
(i) On the The Representatives shall have received an opinion, dated such Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx Xxxxxxx Procter LLP, special Indiana New York counsel to for Longisland International Limited, in the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.attached hereto as Exhibit G.
(j) XxxxxxThe Representatives shall have received an opinion, Xxxxx & Bockius dated such Closing Date, of Xxxxxxx Procter LLP, counsel for Scotiabanc, Inc., in its capacity the form attached hereto as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.Exhibit H.
(k) On the The Representatives shall have received an opinion, dated such Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, special counsel to for Merchant Capital, Inc., in the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.attached hereto as Exhibit I.
(l) The Representative Representatives shall have received an opinion opinion, dated such Closing Date, of Xxxxxxx and Xxxxxx Procter LLP, New York counsel to for Xxxxxxx and Xxxxxxx Xxxx, in the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.attached hereto as Exhibit J.
(m) On The Representatives shall have received from Cravath, Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to the incorporation of the Company, the validity of the Offered Securities delivered on such Closing Date, the Representative Registration Statements, the Prospectus and other related matters as the Representatives may require, and each of the Selling Stockholders and the Company shall have received furnished to such counsel such documents as they may reasonably request for the favorable purpose of enabling them to pass upon such matters. In rendering such opinion, Cravath, Swaine & Xxxxx may rely as to the incorporation of the Company and all other matters governed by Virginia law upon the opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel Hunton & Xxxxxxxx referred to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwritersabove.
(n) The Representative Representatives shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the such Closing Date, of the Representative shall have received President or any Vice President and a principal financial or accounting officer of the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory Company in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative which such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Dateofficers, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed and distributed to any Underwriter; and, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate.
(to) Each Class of Notes The Representatives shall have been rated received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the rating requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectuspurposes of this subsection.
(up) The Representative On or prior to the date of this Agreement, the Representatives shall have receivedreceived a letter, substantially in the form of Exhibit K hereto and addressed to the Representatives, from each of BMW Financial Services, the UTI Beneficiary executive officers and directors of the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityCompany.
(vq) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor Each Selling Shareholder shall provide or cause to be provided deliver to the Representative Representatives a properly completed and executed United States Treasury Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof). Each Selling Stockholder and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Weight Watchers International Inc)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Company with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Mxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPRxxxxx X. Xxxxx III, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Indenture TrusteeCompany), addressed or other appropriate counsel reasonably satisfactory to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
Representatives (m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and which may include Duke Energy Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the Underwriters may rely on each such opinion law of the State of North Carolina, with power and authority (corporate and other) to own its properties and conduct its business as described in the same extent as though such opinion was addressed Pricing Disclosure Package and the Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Company is duly qualified to do business in each jurisdiction in which the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, Company.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCompany.
(wvi) The Depositor issuance and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles or Bylaws of the Company, the North Carolina Business Corporation Act or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company, any of its properties or any of its subsidiaries, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company is a party or by which it or its property is bound or to which any of its property or assets is subject or any instrument filed or incorporated by reference as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2021 or any subsequent Quarterly Report on Form 10-Q of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2021, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes.
(vii) The North Carolina Utilities Commission has issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to this Agreement.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and qualified under the 1939 Act, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms.
(ix) The Notes have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(x) No consent, approval, authorization, order, registration or qualification of or with any federal or North Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and (ix) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including with respect to compliance with XBRL interactive data requirements, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Pricing Disclosure Package and the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that such counsel does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws. Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, letters officers of the Company and documents as the Representative or other sources believed by such counsel to be reliable.
(f) You shall have received an opinion of Hunton Axxxxxx Xxxxx LLP, counsel to the Underwriters Company, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(iii) The Notes have been duly authorized and executed by the Company, and, when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
(iv) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(vi) No Governmental Approval (as defined below), which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby; except for such consents, approvals, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(vii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(viii) The execution and delivery by the Company of this Agreement and the Indenture and the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Notes, will not violate or conflict with, or result in any contravention of, any Applicable Laws (as defined below) of the States of North Carolina and New York.
(ix) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.
Appears in 1 contract
Samples: Underwriting Agreement (Piedmont Natural Gas Co Inc)
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes Class A Certificates will be subject to the accuracy of the representations and warranties made on the part of the Seller herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Seller made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Seller of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, Coopers & Lybrxxx xxxll have furnished to the Representative a letter dated as of the Closing Date substantially in the form and substance of the draft to which the Representative previously agreed.
(b) The Registration Statement shall have become effective not later than 5:30 p.m., New York time, on November 7, 1995, or such later date as shall have been consented to by the Representative; and prior to the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion or opinions as of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a officer's certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, any Vice the President, the Treasurer, any Assistant Treasurer, Executive Vice President - Finance or the principal financial officer, the principal accounting officer or any Treasurer of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated of the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are will be true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) all material respects, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(td) Each Class Since the respective dates as of Notes shall have been rated the rating specified which information is given in the Ratings Free Writing Prospectus by as amended or supplemented, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the hired NRSROs specified business or assets of the Seller, or any material adverse change in the Ratings Free Writing financial position or results or operations of the Seller, otherwise than as set forth or contemplated in the Prospectus, which in any such case makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering or the delivery of the Class A Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented.
(ue) The Subsequent to the execution and delivery of this Agreement, the United States shall not have become engaged in hostilities which have resulted in the declaration of a national emergency or a declaration of war, which makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering of the delivery of the Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented.
(f) J.D. Xxxxxxxx, Xxq., Vice President-General Counsel of Ford Credit and the Seller, or other counsel satisfactory to the Representative in its reasonable judgment, shall have receivedfurnished to the Representative, from each of BMW Financial Serviceshis written opinion, dated the UTI Beneficiary and Closing Date, in form reasonably satisfactory to the DepositorRepresentative in its reasonable judgment, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: the effect that:
(i) certificate The Seller has been duly incorporated and is validly existing as a corporation in good standing under the laws of formationthe State of Delaware, and is duly qualified to transact business and is in good standing in each jurisdiction in the United States of America in which the conduct of its business or the ownership of its property requires such qualification.
(ii) limited liability company agreement or limited partnership agreementThis Agreement has been duly authorized, as applicable, executed and delivered by the Seller.
(iii) applicable resolutions authorizing The Pooling and Servicing Agreement and the Purchase Agreement have been duly authorized, executed and delivered by, and each constitutes a valid and binding obligation of, the Seller.
(iv) The consummation of the transactions contemplated hereby by this Agreement, the Pooling and Servicing Agreement and the Purchase Agreement, and the fulfillment of the terms thereof, will not conflict with or result in a material breach of any of the terms or provisions of, or constitute a default under, or result in the Transaction Documents and (iv) designation creation or imposition of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide any material lien, charge or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.encumbrance upon any
Appears in 1 contract
Samples: Underwriting Agreement (Ford Credit Auto Receivables Corp)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made of the Company and, in the case of the First Closing Date, the Selling Stockholder herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company and, in the case of the First Closing Date, the Selling Stockholder of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representatives shall have received letters, dated, respectively, the date hereof and the First Closing Date, each of PricewaterhouseCoopers LLP confirming that it is a registered public accounting firm and independent public accountants within the meaning of the Transaction Documents, the SUBI Certificate, the Notes Securities Laws and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeform of Schedule B hereto.
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Additional Registration Statement (if any) is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of time the Prospectus is printed and covering procedures performed as of the date of the Prospectusdistributed to any Underwriter, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters or shall have received the Accountant’s Due Diligence Report occurred at or prior such later time as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representatives. The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market Offered Securities; (ii) any downgrading in the rating of any indebtedness or debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any indebtedness or debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in either U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it, in the judgment of the Representatives, impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of Cxxxxxx Xxxxxx & Mxxxx LLP, counsel for the Representative shall have received Company, in the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.set forth on Exhibit B hereto
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated such Closing Date, of Steptoe & Jxxxxxx PLLC, intellectual property counsel for the Closing Date and addressing corporateCompany, enforceability and securities matters satisfactory in the form and substance to the Representative and counsel to the Underwritersset forth on Exhibit C hereto.
(f) The Representative Representatives shall have received an opinion or opinions opinions, each dated such Closing Date, of Xxxxxx, Xxxxx Cxxxxxx Xxxxxx & Bockius Mxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none for each of the DepositorSelling Stockholders, in the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actform set forth on Exhibit D hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx Shearman & Bockius Sterling LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable such opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwritersor opinions, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related such matters as the Representative Representatives may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(rh) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the such Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each an executive officer of the Depositor, BMW Financial Services Company and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act; and, subsequent to the respective dates of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(ti) Each Class In the case of Notes the First Closing Date, the Representatives shall have been rated the rating specified received a certificate, dated such First Closing Date, of two appropriate officers (in the Ratings Free Writing Prospectus by case of the hired NRSROs specified Estate of Jxxx X. Xxxxxx) or Mxxxxxx X. Xxxxxx, as the case may be, in which such officers or Mxxxxxx X. Xxxxxx shall state that the Ratings Free Writing Prospectusrepresentations and warranties of each Selling Stockholder in this Agreement are true and correct and that each Selling Stockholder has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such First Closing Date.
(uj) The Representative On or prior to the date hereof, the Representatives shall have received, received lockup letters from each executive officer, director, stockholder and option holder of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and Company set forth on Schedule C hereto in the Transaction Documents form set forth on Exhibit E hereto. The Company and (iv) designation of incumbency of each Selling Stockholder will furnish the Representatives with such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes Class A Certificates will be subject to the accuracy of the representations and warranties made hereinon the part of the Seller and the Transferor as of the Execution Time and the Closing Date, to the accuracy of the statements of the officers of the Depositor Originators, the Seller, the Transferor and BMW Financial Services the Trust made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Transferor of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(ai) On the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes Underwriters and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy letter, dated the date of delivery thereof or(which, with respect if the Effective Time is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as amendment or post-effective amendment to the registration statement to be filed shortly prior to the Effective Time), of KPMG LLP ("KPMG") confirming that they are independent public accountants within the meaning of the date of Securities Act and the Preliminary Prospectus, Rules and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the drafts draft to which the Representative has Underwriters have previously agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative Underwriters and counsel to for the Underwriters; provided, that and (ii) on the Closing Date, the Underwriters and the Seller shall have received a letter, dated as of the Accountant’s Due Diligence Report at or Closing Date, from KPMG updating the letter referred to in clause (i) above, in form and substance satisfactory to the Underwriters and counsel for the Underwriters.
(b) If the Registration Statement has not become effective prior to the deadline set forth Execution Time, unless the Underwriters agree in Section 2(a)(xxxvii)(Bwriting to a later time, the Registration Statement shall have become effective not later than 10:00 a.m. New York time on the date of this Agreement (or the next day, if this Agreement is executed after the close of business on the date hereof).
(c) The Preliminary Prospectus, ; if filing of the Prospectus, each Free Writing or any supplements thereto, is required pursuant to Rule 424(b), the Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with in the Commission in accordance with manner and within the Rules time period required by Rule 424(b); and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, or threatened.
(c) Subsequent to the knowledge execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of any of the Depositor Originators, the Seller or BMW the Transferor which, in the judgment of the Underwriters materially impairs the investment quality of the Class A Certificates; (ii) any downgrading in the rating of any debt securities of Mellon Financial ServicesCorporation or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), shall be contemplated or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Seller on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal, New York, Delaware or Pennsylvania authorities; or (v) any outbreak or escalation of major hostilities in which the CommissionUnited States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Underwriters, the effect of and such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Class A Certificates.
(d) On the Closing Date, the The Representative shall have received the received:
(1) The favorable opinion or opinions of in-house internal counsel of the Seller and/or Reed Smith LLP counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services Seller and the TrustTransferor, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing datxx xxx Xxxsing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestits counsel, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to in the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, aggregate substantially to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.that:
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date The Transferor has been duly formed as a Delaware business trust under Chapter 38 of Title 12 of the Prospectus (exclusive Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to time, and is validly existing and in good standing under the laws of any supplement thereto)the State of Delaware, there has been no event that has had is duly qualified to do business and is in good standing under the laws of each jurisdiction other than where the failure to be so qualified would not have a material adverse effect on the DepositorTransferor's business, BMW Financial Services or the UTI Beneficiaryand has full trust power and authority to own its properties, whether or not arising from transactions to conduct its business as described in the ordinary course of businessRegistration Statement and the Prospectus, except as set forth in or to enter into and perform its obligations under the Specified Agreements to which it is a party, to execute the Certificates and to consummate the transactions contemplated in the Prospectus (exclusive of any supplement thereto), hereby and thereby;
(ii) the representations and warranties each of the Depositor, BMW Financial Services Specified Agreements to which it is a party and the UTI BeneficiaryCertificates have each been duly authorized, executed and delivered by the Transferor;
(iii) neither the execution and delivery of the Specified Agreements to which it is a party, nor the issuance or delivery of the Certificates, nor the consummation of any of the transactions contemplated herein or therein, nor the fulfillment of the terms of the Certificates or the Specified Agreements, will conflict with or violate, result in a material breach of or constitute a default under (A) any Requirements of Law applicable to the Transferor or any statute or regulation currently applicable to the Trust, (B) any term or provision of any order known to such counsel to be currently applicable to the Transferor or the Trust of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Transferor or the Trust, as the case may be, in this Agreement and the Transaction Documents or (C) any term or provision of any indenture or other agreement or instrument known to such counsel to which it the Transferor or the Trust is a party, party or by which either of them or any of their properties are true bound (provided that the opinion provided pursuant to this paragraph may exclude the indemnification and correct, (iii) contribution provisions of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and Underwriting Agreements);
(iv) (the Receivables constitute "general intangibles" as defined in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified Uniform Commercial Code in effect in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each State of BMW Financial Services, the UTI Beneficiary Delaware and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies Commonwealth of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.Pennsylvania;
(v) All requirements Uniform Commercial Code financing statements with respect to the Investor Interest in the Receivables and the proceeds thereof have been filed in the offices of Rules 15Ga-2 the Secretary of State of the State of Delaware and 17g-10 the Secretary of State of the Commonwealth of Pennsylvania. No other filings or other actions, with respect to the Trustee's interest in the Receivables transferred and to be transferred by the Transferor to the Trust, are necessary to perfect the interest of the Trustee in the Receivables, and the proceeds thereof, against third parties, except that appropriate continuation statements must be filed at five-year intervals;
(vi) in the event that a court were to conclude that the assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trustee pursuant to the Pooling and Servicing Agreement was not a sale, the Pooling and Servicing Agreement, together with the filing of the financing statements referred to in paragraph (v) above, create a first priority perfected security interest in the Receivables transferred and to be transferred by the Transferor to the Trust, all documents and instruments relating thereto and all proceeds thereof, prior to any security interests which may be perfected under Delaware or Pennsylvania law by the filing of financing statements (in rendering such opinion counsel may take such exceptions as are appropriate and reasonably acceptable under the Exchange Act have been and will be timely complied with.circumstances);
(wvii) The Depositor shall provide except as otherwise disclosed in the Prospectus (and any supplements thereto) or cause the Registration Statement, there is no pending or, to the best knowledge of such counsel, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Trust, the Certificates, the Specified Agreements or any of the transactions contemplated therein or with respect to the Transferor which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would have a material adverse effect on the holders of the Certificates or upon the ability of the Transferor to perform its obligations under the Specified Agreements; and any statements included in the Registration Statement and the Prospectus (and any amendments or supplements thereto) describing (A) legal proceedings relating to the Transferor and (B) the Premium Finance Agreements in each case fairly summarize the matters therein described;
(viii) such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be provided stated therein or necessary to make the statements therein not misleading or that the Prospectus (and any amendments or supplements thereto as of the Closing Date) includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (other than, in both cases, financial and statistical information contained or required to be contained therein as to which such counsel need express no belief) (such belief may be limited to the Representative conformed copies sections of such opinionsthe Prospectus under the headings "PROSPECTUS SUMMARY -- TRANSACTION PARTIES -- Transferor," "-- Seller," and "-- Originators and Servicers" (as to Servicers only), certificates, letters and documents as the Representative or counsel "DESCRIPTION OF CERTIFICATES -- Pay-Out Events" (limited to the Underwriters may reasonably requestparagraph thereof beginning with "As of the statistical calculation date . . ."), "BUSINESS OF THE ORIGINATORS," and "THE RECEIVABLES" and the parallel sections of the Registration Statement); and;
Appears in 1 contract
Samples: Underwriting Agreement (Mellon Premium Finance Loan Owner Trust)
Conditions of the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Transferor and World Omni herein, to the accuracy of the statements of the respective officers of the Depositor Transferor and BMW Financial Services World Omni made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor and BMW Financial Services World Omni of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On (i) the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI CertificateRepresentative, World Omni, the Notes Issuer and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Transferor shall have received a fully executed copy letter or letters, dated the date of delivery thereof or(which, with respect if the Effective Time is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as amendment or post-effective amendment to the registration statement to be filed shortly prior to the Effective Time), of PricewaterhouseCoopers LLP ("PWC") confirming that they are independent public accountants within the meaning of the date of Act and the Preliminary Prospectus, Rules and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the draft or drafts to which the Representative has previously agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that for the Underwriters and (ii) on the Closing Date, the Representative, World Omni, the Issuer and the Transferor shall have received a letter or letters, dated as of the Accountant’s Due Diligence Report at or Closing Date, from PWC, updating each letter delivered pursuant to clause (i) above, in form and substance satisfactory to the Representative and counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusdate of this Agreement, the ProspectusEffective Time shall be the date of execution and delivery of this Agreement, each Free Writing Prospectus listed on Schedule III hereto or approved in writing the next business day after the date of this Agreement or such later date as shall have been consented to by the Depositor Representative. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor, World Omni or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion certificates of the President, any Vice President or opinions the Treasurer or any Assistant Treasurer of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act Transferor and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from XxxxxxWorld Omni, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and each dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and in which such counsel officer shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
state that (r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii1) the representations and warranties of the Depositor, BMW Financial Services Transferor and the UTI BeneficiaryWorld Omni, as the case may be, in this Agreement and the Transaction Documents each Basic Document to which it is a party, party and in this Agreement are true and correctcorrect on the Closing Date, (iii2) to the Depositorbest knowledge of such officer after reasonable investigation, BMW Financial Services and the UTI BeneficiaryTransferor or World Omni, as the case may be, has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
Commission and (t3) Each Class subsequent to the date of Notes shall have this Agreement, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transferor or World Omni, as the case may be, except as set forth in or contemplated by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(ud) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: :
(i) certificate The favorable opinion of formationKirkland & Ellis LLP, special counsel to the Transferor and World Omni, xxxxx the Xxxxing Date and satisfactory in form and substance to the Representative and counsel for the Underwriters, and substantially to the effect that:
(ii1) limited liability company Assuming the due authorization, execution and delivery thereof by the other parties thereto, each Basic Document will constitute a valid and binding agreement or limited partnership agreementof the Issuer, the Transferor and World Omni, as applicablethe case may be, enforceable against such entity in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting enforcement of creditors' rights generally and by general principles of equity (iiiregardless of whether such enforceability is considered in a proceeding in equity or at law).
(2) applicable resolutions authorizing Assuming the transactions contemplated hereby Notes have been duly and validly authorized, when executed, authenticated and delivered as specified in the Indenture and the Series Supplement and when delivered to the Underwriters against payment of the consideration specified herein, the Notes will constitute a valid and binding obligation of the Issuer, enforceable in accordance with their terms and the holder of the Notes will be entitled to the benefits accorded by the Indenture and the Series Supplement.
(3) The statements in the Prospectus Supplement under the captions "Summary of Terms" and "Series Provisions", and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 Base Prospectus under the Exchange Act captions "Summary", "The Trust", "The Accounts", "The Notes" and "The Transfer and Servicing Agreements", insofar as such statements purport to summarize certain terms or provisions of the Notes, the Transferor Certificate and the Basic Documents, provide a fair summary of such provisions, and the statements in the Prospectus Supplement under "Certain Federal Income Tax Consequences" and "ERISA Considerations", and the Base Prospectus under "Certain Legal Aspects of the Receivables--Certain Matters Relating to Bankruptcy", "Certain Federal Income Tax Consequences" and "ERISA Considerations", to the extent that they constitute matters of law, summaries of legal matters, documents or proceedings or legal conclusions relating to U.S. federal law have been prepared or reviewed by such counsel and will be timely complied withare correct in all material respects.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Wodfi LLC)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be Firm Shares on the Closing Date and the Additional Shares on any Option Closing Date are subject to the accuracy fulfillment of each of the representations and warranties made herein, following conditions on or prior to the accuracy of the statements of officers of the Depositor Closing Date and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedenteach Option Closing Date:
(a) On All the representations and warranties of the Company contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable, except to the extent such representations and warranties are stated to be made as of a specific date, in which case, such representations and warranties shall be true and correct as of such date. The Company shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all respects with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both If the Registration Statement is not effective at or before the date hereof, time of the execution and on or before the Closing Datedelivery of this Agreement, the Representative Registration Statement shall have received three lettersbecome effective (or, one relating to the 2021if a post-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication effective amendment is required to be filed with pursuant to Rule 430A under the Commission Act, such post-effective amendment shall have become effective) not later than 9:30 A.M., New York City time, on the date immediately following the date of this Agreement or such later time as you may approve in writing or, if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been filed with as required hereby, if necessary; and at the Commission in accordance with the Rules Closing Date and Regulations and Section 7(h) hereof; on or prior to the each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before or, to the best knowledge of the Depositor Underwriters or BMW Financial Servicesthe Company, shall be contemplated threatened by the Commission; every request for additional information on the part of the Commission shall have been complied with to the Underwriters' satisfaction; no stop order suspending the sale of the Shares in any jurisdiction referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) The Shares shall have been qualified for sale, if applicable, under the Blue Sky laws of such states as shall have been specified by the Representatives.
(d) On The legality and sufficiency of the Closing Dateauthorization, issuance and sale or transfer and sale of the Shares hereunder, the Representative validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have received been approved by counsel for the favorable opinion Underwriters exercising reasonable judgment, and neither the Registration Statement nor the Prospectus, nor any amendment or opinions supplement thereto, shall contain an untrue statement of in-house counsel material fact, or omit to state a fact that is material and is required to be stated therein or is necessary to make the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any material change, or any material development involving a prospective change, in or affecting particularly the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion business or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none properties of the Depositor, the Trust Company or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, Bank whether or not arising from transactions in the ordinary course of business, except that, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby.
(f) You shall have received an agreement from each of the officers and directors of the Company and from ______________ (collectively, the "Additional Stockholders"), whereby each such Additional Stockholder agrees to be bound by an agreement to the same effect as the covenants set forth in the third paragraph of Section 3 of this Agreement (the "Lock-Up Agreements").
(g) You shall have received an opinion (satisfactory to you and your counsel) dated the Closing Date or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI BeneficiaryOption Closing Date, as the case may be, of Vedder, Price, Xxxxxxx & Kammholz, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of Delaware. The Bank has been duly organized and is validly existing as a an Illinois banking corporation in good standing under the laws of Illinois. Each of the Company and the Bank has all necessary power and authority, corporate or otherwise, to own, lease and operate their respective properties and assets and to conduct their respective businesses as described in the Registration Statement and the Prospectus, and each is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which its ownership or lease of real property or the conduct of its business makes such qualification necessary and in which the failure to so qualify could have a Material Adverse Effect.
(ii) The Company has all necessary corporate power and authority to enter into and perform this Agreement, and the performance of the Company's obligations hereunder has been duly authorized by all necessary corporate action; this Agreement has been duly executed and delivered by and on behalf of the Company, and, assuming due authorization, execution and delivery of this Agreement by the Underwriters, constitutes a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equity principles; no approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body or, to the best of such counsel's knowledge, after due inquiry, third party, is necessary in connection with the execution and delivery of this Agreement and the Transaction Documents consummation of the transactions contemplated herein (other than as may be required by the NASD or as required by state securities or Blue Sky laws, as to which it is a partysuch counsel need express no opinion) except such as have been obtained or made, are true and correct, with counsel specifying the same.
(iii) The authorized, issued and outstanding capital stock of the DepositorCompany is as set forth in the Prospectus under "Capitalization;" and all of the shares of outstanding capital stock of the Company have been duly authorized and validly issued, BMW Financial Services are fully paid and non- assessable and were not issued in violation of any preemptive rights or, to the best of such counsel's knowledge, other rights to subscribe for or purchase securities. Except as set forth in the Registration Statement and the UTI BeneficiaryProspectus, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and best of such counsel's knowledge, no options, warrants or other rights to convert any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company are outstanding.
(iv) (in To the case best of such counsel's knowledge, after due inquiry, neither the filing of the Depositor Registration Statement or any amendment thereto nor the offer and BMW Financial Services onlysale of the Shares as contemplated by this Agreement gives rise to any rights, nor do any rights exist, for or relating to the registration under the Act of any securities of the Company that have not been waived.
(v) that The Registration Statement has become effective under the Act, the Prospectus has been filed as required by this Agreement, if necessary, and to the best of such counsel's knowledge, after telephonic inquiry of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated have been initiated or threatened by the Commission. The Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A, if applicable), the Prospectus and each amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act.
(tvi) Each Class Neither the Company nor the Bank is an "investment company" or a company controlled by an "investment company" within the meaning of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing ProspectusInvestment Company Act.
(uvii) The Representative shall have receivedTo the best of such counsel's knowledge, from each all of BMW Financial Servicesthe issued and outstanding capital stock of the Bank is owned by the Company, the UTI Beneficiary free and the Depositorclear of any security interest, a certificate executed by a secretary mortgage, pledge, lien, encumbrance, claim or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityequitable right.
(vviii) All requirements of Rules 15Ga-2 and 17g-10 The statements made in the Registration Statement under the Exchange Act captions, "Capitalization," "Description of Capital Stock," "Management-Stock Incentive Plan" and "Legal Matters," to the extent that they constitute summaries of documents referred to therein or matters of law or legal conclusions, have been reviewed by such counsel and will be timely complied withare accurate in all material respects.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Class A Bonds on the Closing Date will be subject to the accuracy of the representations and warranties made on the part of the AMS Parties and the Issuer Trustee herein, to the accuracy of the statements of officers of the Depositor AMS Parties and BMW Financial Services the Issuer Trustee made pursuant hereto when madeto the provisions hereof, to the performance by of the Depositor AMS Parties and BMW Financial Services the Issuer Trustee of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Registration Statement shall have been duly authorizedbecome effective, executed and delivered by or if a post-effective amendment is required to be filed under the parties theretoSecurities Act, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee such post-effective amendment shall have received a fully executed copy thereof orbecome effective, with respect to the Notes and Certificatesnot later than 5:00 P.M., a conformed copy thereof. The Transaction DocumentsNew York City time, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before on the date hereof, and hereof or on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a such later date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously consented; and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission. The Prospectus, including all price-related information previously omitted from the prospectus which formed a part of the Registration Statement at the time it became effective, in accordance with Rule 430A, shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5.1.(a) hereof; and prior to the Closing Date the Trust Manager shall have provided evidence satisfactory to the Representative of such timely filing, and all requests for additional information shall have been complied with to the satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of any of the AMS Parties, the Issuer Trustee, the Interest Rate Swaps Counterparty or the Currency Swap Counterparty and their respective subsidiaries, in each case, taken as one enterprise, which, in the judgment of a majority in interest of the Underwriters including the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Class A Bonds; (ii) any downgrading in the rating of any debt securities of any of the Trust Manager, AMS, the Issuer Trustee, the Interest Rate Swaps Counterparty or the Currency Swap Counterparty by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of the Bonds or any debt securities of any of the Trust Manager, AMS, the Issuer Trustee, the Interest Rate Swaps Counterparty or the Currency Swap Counterparty (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, the London Stock Exchange or any other exchange on which the Class A Bonds are listed, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of any of the Trust Manager, AMS, the Issuer Trustee, any Interest Rate Swap Counterparty or the Currency Swap Counterparty on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by U.S. Federal, New York, London, England or Australia authorities; or (v) any outbreak or escalation of major hostilities in which the United States, England or Australia is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Class A Bonds.
(c) The Representative shall have received a certificate, dated such Closing Date, of the managing director, director or any chief general manager of each AMS Party and (as to paragraphs (i) and (ii) below only) of an authorized officer of the Issuer Trustee in which such officers, to the best of their knowledge after reasonable investigation, shall state that: (i) the representations and warranties of such entity in this Agreement are true and correct; (ii) such entity has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; (iii) in the case of the Trust Manager, no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be are contemplated by the Commission; and (iv) subsequent to the date of the most recent financial statements supplied by the AMS Parties to the Underwriters or the Representative on behalf of the Underwriters, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of such entity and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate.
(d) On Allens Xxxxxx Xxxxxxxx, Australian counsel for AMS, the Trust Manager and the Servicer, shall have furnished to the Representative their written opinion, dated the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestRepresentative, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters them to be based pass upon such matters.
(re) Allens Xxxxxx Xxxxxxxx, Australian tax counsel for AMS, the Trust Manager and the Servicer, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(f) The Representative shall have received copies two letters, one dated the date hereof and one dated the Closing Date, of each opinion KPMG confirming that they are independent public accountants within the standards established by the American Institute of counsel delivered to any rating agency, together with a letter addressed Certified Public Accountants and stating to the Representative effect that they have compared specified dollar amounts (but only or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the AMS Parties and their subsidiaries subject to the internal controls of such parties' accounting system or are derived directly from such records by analysis or computation or from the collateral tape containing the description of the Housing Loans) with the results obtained from inquiries, a reading of such general accounting records and collateral tape and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(g) Mayer, Brown, Xxxx & Maw, United States counsel for the AMS Parties and the Issuer Trustee, shall have furnished to the Representative is not an addressee of such their written opinion), dated the Closing Date, in form and substance satisfactory to the effect that the Underwriters may rely on each Representative, and such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary counsel shall have furnished received such papers and information as they may reasonably request to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Dateenable them to pass upon such matters, to the effect that that:
(1) The Bond Trust Deed has been duly qualified under the signer Trust Indenture Act;
(2) To such counsel's knowledge, there are no material contracts, indentures, or other documents of such certificate has reviewed a character required to be described or referred to under either the Registration StatementStatement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940;
(4) No consent, approval, authorization or order of, or filing with, any supplements to governmental agency located in the United States or body or any court located in the United States is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Bonds by the Issuer Trustee, except such as have been obtained and made under the Securities Act and the Trust Indenture Act and such as may be required under state securities laws;
(5) The Registration Statement was filed and was declared effective under the Securities Act as of the date and time specified in such opinion, the Prospectus and this Agreement and that either was filed with the Commission pursuant to subparagraph (4) of Rule 424(b) on the date specified therein, and, to the best of his or her the knowledge after reasonable investigationof such counsel, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, and each Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act and the Rules and Regulations; such counsel have no reason to believe that any part of the Registration Statement or any amendment thereto, as of its effective date or as of such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus or any amendment or supplement thereto, as of its issue date or as of such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings are contemplated by accurate and fairly present the Commissioninformation required to be shown: it being understood that such counsel need express no opinion as to the financial statements, other financial data contained in the Registration Statement or the Prospectus or the Statement of Eligibility of the Bond Trustee on Form T-1 contained in the Registration Statement;
(6) The statements in the Prospectus under the Captions "Description of the Class A Bonds" and "Description of the Transaction Documents", insofar as they purport to summarize certain terms of the Bonds and the applicable Basic Documents, constitute a fair summary of the provisions purported to be summarized; and
(7) This Agreement represents a legal valid and binding obligation of each of AMS, the Trust Manager and the Issuer Trustee, subject to customary exceptions.
(th) Each Class of Notes Mayer, Brown, Xxxx & Maw, United States federal income tax counsel for the AMS Parties and the Issuer Trustee, shall have been rated furnished to the rating specified Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing ProspectusRepresentative.
(ui) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the Issuer Trustee, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(j) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Bond Trustee, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(k) Counsel to the Interest Rate Swaps Counterparty and the Currency Swap Counterparty shall have furnished to the Representative and the AMS Parties their written opinion in form and substance satisfactory to the Representative.
(l) Sidley Xxxxxx Xxxxx & Xxxx, LLP, United States counsel to the Underwriters, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(m) The Representative shall have received, received a letter or letters from each of BMW Financial Services, counsel delivering any written opinion to any Rating Agency in connection with the UTI Beneficiary and transaction described herein which is not otherwise described in this Agreement allowing the Depositor, a certificate executed by a secretary or assistant secretary thereof Representative to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, rely on such opinion as applicable, (iii) applicable resolutions authorizing if it were addressed to the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityRepresentative.
(vn) All requirements of Rules 15Ga-2 and 17g-10 under At the Exchange Act Closing Date, the Class A Bonds shall have been rated "AAA" by Standard & Poor's (Australia) Pty Limited ("S&P") and will be timely complied withFitch Australia Pty Limited ("Fitch") and "Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's" and together with Standard and Poor's and Fitch, the "Rating Agencies"), as evidenced by letters from the Rating Agencies.
(wo) The Depositor execution and delivery by all parties thereto of the Basic Documents on or prior to the Closing Date.
(p) On or prior to the Closing Date the AMS Parties and the Issuer Trustee shall provide or cause to be provided have furnished to the Representative conformed copies of such opinions, certificates, letters further certificates and documents as the Representative or counsel to the Underwriters may shall reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Australian Securitisation Management Pty LTD)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of each of the Trust, the Depositor and NMAC herein on the date hereof and at the Series 2019-B Issuance Date, to the accuracy of the statements of officers of the Trust, the Depositor and BMW Financial Services NMAC made pursuant hereto when madeto the provisions hereof, to the performance by the Trust, the Depositor and BMW Financial Services NMAC of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereofSeries 2019-B Issuance Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative letters dated, respectively, (i) as of November 13, 2019, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed (ii) as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, this Agreement substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory agreed. Such independent public accountants shall have furnished to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth third-party due diligence report referenced in Section 2(a)(xxxvii)(B2(x).
(cb) The If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the Closing execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been consented to by the Representative. On and prior to the Series 2019-B Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesDepositor, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersofficers’ certificate, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the XxxxSeries 2019-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing B Issuance Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerDepositor representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Series 2019-B Issuance Date:
(i) since the date Each of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Series 2019-B Issuance Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Series 2019-B Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Series 2019-B Issuance Date:
(i) Each Class of the representations and warranties of NMAC in this Agreement is true and correct in all material respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Series 2019-B Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of NMAC or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Depositor, Nissan North America, Inc. (“NNA”) or NMAC which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Series 2019-B Issuance Date, Xxxx X. Xxxxxx, Esq., General Counsel of the Depositor and NMAC, or other counsel reasonably satisfactory to the Representative in its reasonable judgment, shall have been rated furnished to the rating specified Representative such counsel’s written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2019-B Issuance Date, reasonably satisfactory in form and substance to the Representative and its counsel.
(g) At the Series 2019-B Issuance Date, Xxxxx Xxxxx LLP, special counsel to the Depositor and NMAC, shall have furnished to the Representative their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated as of the Series 2019-B Issuance Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, tax matters, 1940 Act matters, the validity of the Notes, the Registration Statement, the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus.
(h) At the Series 2019-B Issuance Date, Xxxxx Xxxxx LLP shall have furnished their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2019-B Issuance Date, with respect to the characterization of the transfer of the Receivables by NMAC to the Depositor and with respect to other bankruptcy and perfection of security interest matters and such opinion shall be reasonably satisfactory in form and in substance to the Representative and its counsel.
(i) At the Series 2019-B Issuance Date, Xxxxxx Xxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Series 2019-B Issuance Date, with respect to the validity of the Notes and such other related matters as the Underwriters shall require, and such opinion shall be reasonably satisfactory in form and substance to the Representative and its counsel and the Depositor shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Series 2019-B Issuance Date, Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinions to the Representative, the Depositor and the Servicer, dated the Series 2019-B Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(k) At the Series 2019-B Issuance Date, Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, shall have furnished their written opinion dated as of Series 2019-B Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(l) At the Series 2019-B Issuance Date, in-house counsel to the Asset Representations Reviewer, shall have furnished such counsel’s written opinion dated as of Series 2019-B Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(m) The Representative shall have received an officer’s certificate dated the Series 2019-B Issuance Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Depositor and NMAC in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Depositor or NMAC, as applicable, contained in the Ratings Free Writing Prospectus by Transfer and Servicing Agreement and the hired NRSROs representations and warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase Agreement are true and correct in all material respects and that the Depositor or NMAC, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Series 2019-B Issuance Date in all material respects.
(n) At the Series 2019-B Issuance Date, Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee counsel to the Depositor and NMAC, shall have furnished their written opinion dated as of Series 2019-B Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(o) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
(up) The Representative On or prior to the Series 2019-B Issuance Date, the Trust, the Depositor and NMAC shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of Underwriters such opinions, certificates, letters further certificates and documents as the Representative or counsel to the Underwriters may shall reasonably requesthave required.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Master Owner Trust Receivables)
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be Offered Certificates pursuant to this Agreement are subject to (i) the accuracy on and as of the Closing Date of the representations and warranties made hereinon the part of the Company herein contained, to (ii) the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madehereto, to (iii) the performance by the Depositor and BMW Financial Services Company of their all of its obligations hereunder, and to the performance by the Company of all of its obligations under the Company Agreements and (iv) the following additional conditions precedent:
(a) On as of the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.:
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no A. No stop order suspending the effectiveness of the Registration Statement shall have been issued issued, and no proceedings proceeding for that purpose shall have been instituted or, to the knowledge of the Depositor initiated or BMW Financial Services, shall be contemplated threatened by the Commission. Any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus shall have been complied with.
(d) On the Closing Date, the Representative B. You shall have received the favorable opinion or opinions of inTransfer Agreement, the Pooling and Servicing Agreement, any Sub-house counsel to Servicing Agreements, the Depositor Insurance Agreement, the Indemnification Agreement and BMW Financial Services addressed to the Underwriters, dated the Closing Date and Offered Certificates in form and substance satisfactory to you and duly executed by the Representative and counsel signatories required pursuant to the Underwritersrespective terms thereof.
(e) The Representative C. You shall have received an opinion or opinions of Xxxxxxfrom Xxxxx Xxxxxxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust Company and the TrustTransferor, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the a favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwritersopinion, dated the Closing Date and satisfactory in form and substance to the Representative Underwriters and counsel for the Underwriters to the Underwriterseffect that:
(i) The issuance and sale of the Offered Certificates have been duly authorized and, when executed, authenticated, countersigned and delivered by the Trustee in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, will be validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement.
(mii) On No authorization, approval, consent or order of, or filing with, any court or governmental agency or authority is necessary under the Closing Datefederal law of the United States or the laws of the State of New York in connection with the execution, delivery and performance by the Representative shall have received Company of the favorable opinion of XxxxxxxxCompany Agreements, Xxxxxx except such as may be required under the Act or the Rules and FingerRegulations and Blue Sky or other state securities laws, P.A., counsel filings with respect to the Vehicle Trustee, addressed transfer of the Mortgage Loans to the Underwriters, dated the Closing Date and satisfactory in form and substance Trust pursuant to the Representative Pooling and counsel to the UnderwritersServicing Agreement and such other approvals or consents as have been obtained.
(niii) The Representative shall have received an opinion Each Company Agreement constitutes the legal, valid and binding obligation of Xxxxxxxxthe Company, Xxxxxx & Fingerenforceable against the Company in accordance with their respective terms, P.A.except that as to enforceability such enforcement may (A) be subject to applicable bankruptcy, counsel insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally, (B) be limited by general principles of equity (whether considered in a proceeding at law or in equity) and (C) the enforceability as to the Owner Trustee, addressed rights to the Underwriters, dated the Closing Date and satisfactory in form and substance indemnification may be subject to the Representative and counsel to the Underwriterslimitations of public policy under applicable laws.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(siv) Each Transferor Agreement constitutes the legal, valid and binding obligation of the DepositorTransferor, BMW Financial Services and enforceable against the UTI Beneficiary shall have furnished Transferor in accordance with their respective terms, except that as to enforceability such enforcement may (A) be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the Representative a certificate rights of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigationcreditors generally, (iB) since the date be limited by general principles of the Prospectus equity (exclusive of any supplement thereto), there has been no event that has had whether considered in a material adverse effect on the Depositor, BMW Financial Services proceeding at law or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus equity) and (exclusive of any supplement thereto), (iiC) the representations and warranties enforceability as to rights to indemnification may be subject to limitations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) public policy under applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entitylaws.
(v) All requirements of Rules 15Ga-2 The Pooling and 17g-10 Servicing Agreement is not required to be qualified under the Exchange Trust Indenture Act have been and will be timely complied withof 1939, as amended.
(wvi) Neither the Company nor the Trust is required to be registered as an "investment company" under the Investment Company Act of 1940, as amended.
(vii) The Depositor shall provide or cause direction by the Company to the Trustee to execute, issue, countersign and deliver the Offered Certificates has been duly authorized and, when the Offered Certificates are executed and authenticated by the Trustee in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, they will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement.
(viii) Immediately prior to the transfer of the Mortgage Loans by the Company to the Transferor pursuant to the Sale Agreement, the Company was the sole owner of all right, title and interest in the Mortgage Loans and other property to be provided transferred to the Representative conformed copies of Transferor.
(ix) The Company has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Transferor and has duly authorized such opinions, certificates, letters sale and documents as the Representative or counsel assignment to the Underwriters may reasonably requestTransferor by all necessary corporate action.
(x) The Company has directed the Trustee in its capacity as Trustee of the Access Financial Loan Purchase Trust to transfer, assign, set over and otherwise convey without recourse, to the Transferor, all right, title and interest of the Company in and to each Mortgage Loan listed on the Mortgage Loan Schedule delivered by the Company on the Startup Day, and all of its right, title and interest in and to (A) scheduled payments of interest due on each Mortgage Loan after the Cut-Off Date, (B) scheduled payments of principal due, and unscheduled collections of principal received, on each Mortgage Loan on and after the Cut-off Date and (C) the Certificate Insurance Policy; such transfer of the Mortgage Loans set forth on the Mortgage Loan Schedule to the Transferor will be absolute and is intended by the Company and all parties hereto to be treated as a sale to the Trust.
(xi) The Offered Certificates, the Pooling and Servicing Agreement, any Sub-Servicing Agreement and this Agreement each conform in all material respects with the respective descriptions thereof contained in the Registration Statement and the Prospectus.
(xii) The statements in the Prospectus under the captions "Summary of Prospectus - Certain Federal Income Tax Considerations", "Summary of Prospectus - ERISA Considerations", "ERISA Considerations" and "Certain Federal Income Tax Considerations", "Summary - ERISA Considerations", "Summary - Federal Tax Aspects", "ERISA Considerations", "Certain Federal Tax Aspects" and "REMICS", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and represent a fair and accurate summary of the matters addressed therein, under existing law and the assumptions stated therein.
Appears in 1 contract
Samples: Underwriting Agreement (Access Financial Lending Corp)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm ADSs on the First Closing Date and the Option ADSs to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Principal Shareholders herein (as though made hereinon such Closing Date), to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representative shall have received letters, dated, respectively, the date hereof and at each Closing Date, each of Deloitte Touche Tohmatsu CPA Ltd., confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Transaction DocumentsSecurities Laws and in the form reasonably satisfactory to you; provided in any letter dated a Closing Date, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, specified date referred to in such letter shall be in full force and effect and a date no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect more than three days prior to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativesuch Closing Date.
(b) Both at or before If the date hereofEffective Time of the Additional Registration Statement, and on or before the Closing Dateif any, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary time the Final Prospectus is finalized and covering procedures performed as of the date of the Preliminary Prospectusdistributed to any Underwriter, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report occurred at or prior such later date as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representative. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on the date of this Agreement or prior such later date as shall have been consented to by the Representative. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representative, shall be have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects or of the Company, the Subsidiaries and the Variable Interest Entity taken as a whole which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any loss or interference with the Company’s, any Subsidiary’s or the Variable Interest Entity’s business from fire, explosion, flood or other calamity, whether or not covered by insurance, or any change in the share capital or short-term debt or long term debt of the Company, any of the Subsidiaries or the Variable Interest Entity, the effect of which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (iii) a change in U.S., the PRC, the Cayman Islands or international financial, political or economic conditions or currency exchange rates, exchange controls the effect of which is such as to make it, in the judgment of the Representative, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NYSE or the Nasdaq Stock Market, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. federal, New York, PRC or the Cayman Islands authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States, the PRC or the Cayman Islands; (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the Cayman Islands or the PRC, any declaration of war by the U.S. Congress, the PRC or any other national or international calamity or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered ADSs or to enforce contracts for the sale of the Offered ADSs.
(d) On the Closing Date, the The Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwritersan opinion, dated such Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel for the Closing Date and Company, in the form and substance reasonably satisfactory to the Representative and counsel to the Underwritersyou.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated such Closing Date, of Xxx Xx Law Offices, PRC counsel for the Closing Date and addressing corporateCompany, enforceability and securities matters in the form reasonably satisfactory in form and substance to the Representative and counsel to the Underwritersyou.
(f) The Representative shall have received an opinion or opinions dated such Closing Date, of XxxxxxXxxxx Xxxxxxx, Xxxxx & Bockius LLPCayman Islands counsel for the Company, counsel in the form reasonably satisfactory to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actyou.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersan opinion, dated such Closing Date, of Xxxxxx Xxxxx, British Virgin Islands counsel for Gold Intellect Limited as one of the Closing Date Principals Shareholders, in the form reasonably satisfactory in form and substance to the Representative and counsel to the Underwritersyou.
(h) On the Closing Date, the The Representative shall have received the favorable opinion of Xxxxxxxxan opinion, Xxxxxx dated such Closing Date, from Xxxxxxx, Xxxxxxx & FingerAssociates LLP, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to Depositary in the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Representative and counsel to the Underwritersyou.
(i) On the Closing Date, the The Representative shall have received the favorable opinion of Xxxxxx from Xxxxxxx Xxxxxxx & Xxxxxxxxx Xxxxxxxx LLP, special Indiana United States counsel to the UTI Beneficiary, addressed to for the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an such opinion addressed to the Underwritersor opinions, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the such Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may rely as to the incorporation of the Company and all other matters governed by Cayman Islands laws upon the opinion of Xxxxx Xxxxxxx and as to all matters governed by the laws of the PRC upon the opinions of Haiwen & Partners referred to below.
(ij) certain true sale The Representative shall have received from Haiwen & Partners, PRC counsel to the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representative may require, and nonconsolidation bankruptcy the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(k) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADSs, the execution, issuance, countersignature and delivery of the ADSs pursuant to the Deposit Agreement and such other matters and (ii) certain security interest mattersrelated thereto as the Representative may reasonably request.
(l) The Representative Company and the Depositary shall have received an opinion executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of Xxxxxxx the Shares and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to issuance of the Underwriters, dated ADSs in accordance with the Closing Date and satisfactory in form and substance to the Representative and counsel to the UnderwritersDeposit Agreement.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the such Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive Officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Financial Officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission, the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company, the Subsidiaries and the Variable Interest Entity taken as a whole, except as set forth in such certificate.
(n) The Representative shall have received certificates, dated, respectively, the date hereof and at each Closing, of each of the Chief Executive Officer and the Chief Financial Officer of the Company in the form reasonably satisfactory to you; provided in any letter dated a Closing Date, the specified date referred to in each of such certificates shall be a date no more than three days prior to such Closing Date.
(o) On or prior to the date hereof, the Representative shall have received Lock-Up Agreements, substantially in the form of Annex B-II hereto, from each of the persons named in Annex B-I hereto.
(p) The Representative shall have received a certificate, dated such Closing date, of such Principal Shareholder or its authorized representative, as the case may be, in which such Principal Shareholder or its authorized representative shall state that: the representations and warranties of such Principal Shareholder in this Agreement are true and correct; and such Principal Shareholder has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date.
(q) The ADSs shall have been listed and admitted and authorized for trading on the NYSE.
(r) On or prior to the First Closing Date, the Offered ADSs shall be eligible for clearance and settlement through the facilities of DTC.
(s) There shall not be any litigation, proceedings, investigations, processes for administrative sanctions or other actions initiated or threatened by any Governmental Agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare non-compliant, unlawful or illegal, under PRC laws, rules and regulations or otherwise, the issuance and sales of the Offered ADSs, the listing and trading of the Offered ADSs on the NYSE or the transactions contemplated by this Agreement and the Deposit Agreement.
(t) Each Class of Notes No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Registration Statement, the ADS Registration Statement or the Prospectus shall have been rated filed to which the rating specified Representative objects in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectuswriting.
(u) The Representative FINRA shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided raised no objection to the fairness and reasonableness of the underwriting terms and arrangements. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel reasonably requests. The Representative may in its sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Option Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties of the Company and the Selling Stockholders herein (as though made hereinon such Closing Date), to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Stockholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representatives shall have received, on each of the date hereof and each Closing Date, each a letter dated the date hereof or such Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from Ernst & Young LLP, independent public accountants, containing statements and information of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be type ordinarily included in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, accountants’ “comfort letters” to underwriters with respect to the Notes financial statements and Certificates, a conformed copy thereof. The Transaction Documentscertain financial information contained in the Registration Statements, the SUBI Certificate, the Notes General Disclosure Package and the Certificates Final Prospectus; provided that, in any letter delivered on a Closing Date, such letter shall be substantially in the forms heretofore provided use a “cut-off date” no earlier than three days prior to the Representativesuch Closing Date.
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Additional Registration Statement (if any) is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary time the Final Prospectus is finalized and covering procedures performed as of the date of the Preliminary Prospectusdistributed to any Underwriter, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report occurred at or prior such later time as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representatives. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior 5(a). Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company, any Selling Stockholder or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any change in U.S. or international financial, political or economic conditions or the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iii) any suspension or material limitation of trading in securities generally on the NASDAQ Stock Market, or any setting of minimum or maximum prices for trading on such exchange; (iv) or any suspension of trading of any securities of the Company on any U.S. national securities exchange or in the over-the-counter market; (v) any banking moratorium declared by any U.S. federal or New York authorities; (vi) any major disruption of settlements of securities, payment or clearance services in the United States or any other country where such securities are listed, or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of DLA Piper LLP (US), counsel for the Representative shall have received Company and the favorable opinion or opinions of in-house counsel Selling Stockholders, to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriterseffect set forth on Schedule E hereto.
(e) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxDow Xxxxxx PLLC, Xxxxx & Xxxxxxx LLPspecial regulatory counsel for the Company, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriterseffect set forth on Schedule F hereto.
(f) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx from Xxxxxx & Bockius Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Closing Date Representatives may require, and addressing the following issues (i) none Company and the Selling Stockholders shall have furnished to such counsel such documents as they request for the purpose of the Depositor, the Trust or the Vehicle Trust is required enabling them to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actpass upon such matters.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriterscertificate, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each executive officer of the Depositor, BMW Financial Services Company and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the dates of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(th) Each Class of Notes On or prior to the date hereof, the Representatives shall have been rated received lock-up letters from each of the rating specified in executive officers and directors of the Ratings Free Writing Prospectus by Company and from each of the hired NRSROs specified in the Ratings Free Writing ProspectusSelling Stockholders.
(ui) The Representative shall have received, from Custodian will deliver to the Representatives a letter stating that they will deliver to each Selling Stockholder a United States Treasury Department Form 1099 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) on or before January 31 of BMW Financial Services, the UTI Beneficiary and year following the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies date of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entitythis Agreement.
(vj) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and To avoid a 28% backup withholding tax each Selling Stockholder will be timely complied with.
(w) The Depositor shall provide or cause to be provided deliver to the Representative Representatives a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). The Selling Stockholders and the Company will furnish the Representatives such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Grand Canyon Education, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm ADSs on the First Closing Date and the Option ADSs to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein (as though made hereinon such Closing Date), to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representative shall have received letters, dated, respectively, the date hereof and at each Closing Date, each of Deloitte Touche Tohmatsu CPA Ltd., confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Transaction DocumentsSecurities Laws and in form and substance satisfactory to the Underwriters, containing statements and information of the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be type ordinarily included in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, accountants’ “comfort letters” to underwriters with respect to the Notes financial statements and Certificates, a conformed copy thereof. The Transaction Documentscertain financial information contained in the Registration Statement, the SUBI Certificate, the Notes General Disclosure Package and the Certificates Final Prospectus; provided that the letter delivered on any Closing Date shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received use a “cut-off date” no earlier than three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofthe letter is dated.
(b) If the Effective Time of the Additional Registration Statement, one relating if any, is not prior to the Preliminary Prospectusexecution and delivery of this Agreement, dated such Effective Time shall have occurred not later than 10:00 P.M., New York time, on or about the date of this Agreement or, if earlier, the Preliminary time the Final Prospectus is finalized and covering procedures performed as of the date of the Preliminary Prospectusdistributed to any Underwriter, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report occurred at or prior such later date as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representative. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on the date of this Agreement or prior such later date as shall have been consented to by the Representative. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representative, shall be have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects or of the Company and the Subsidiaries taken as a whole which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any loss or interference with the Company’s or any Subsidiary’s business from fire, explosion, flood or other calamity, whether or not covered by insurance, or any change in the share capital or short-term debt or long term debt of the Company or any of the Subsidiaries, the effect of which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (iii) a change in U.S., the PRC, the Cayman Islands or international financial, political or economic conditions or currency exchange rates, exchange controls the effect of which is such as to make it, in the judgment of the Representative, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NYSE or the Nasdaq Stock Market, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. federal, New York, PRC or the Cayman Islands authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States, the PRC or the Cayman Islands; (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the Cayman Islands or the PRC, any declaration of war by the U.S. Congress, the PRC or any other national or international calamity or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered ADSs or to enforce contracts for the sale of the Offered ADSs.
(d) On the Closing Date, the The Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwritersan opinion, dated such Closing Date, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, United States counsel for the Closing Date and Company, substantially in the form and substance satisfactory to the Representative and counsel to the Underwritersset forth in Annex C hereto.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated such Closing Date, of Jxx Xx Law Offices, PRC counsel for the Closing Date and addressing corporateCompany, enforceability and securities matters satisfactory substantially in the form and substance to the Representative and counsel to the Underwritersset forth in Annex D hereto.
(f) The Representative shall have received an opinion or opinions dated such Closing Date, of XxxxxxTxxxxxx Txxxx Xxxxxxx, Xxxxx & Bockius LLPCayman Islands counsel for the Company, counsel to substantially in the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actform set forth in Annex E hereto.
(g) The Representative shall have received a negative assurance letter an opinion, dated such Closing Date, from XxxxxxZxxxxxx, Xxxxx Zxxxxxx & Bockius Associates LLP, counsel to for the DepositorDepositary, BMW Financial Services and substantially in the Trust, addressed to the Underwriters, dated the Closing Date satisfactory form set forth in form and substance to the Representative and counsel to the UnderwritersAnnex F hereto.
(h) On the Closing Date, the The Representative shall have received the favorable opinion of Xxxxxxxxfrom Dxxxx Xxxx & Wxxxxxxx, Xxxxxx & Finger, P.A., special Delaware United States counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, such opinion or opinions, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Dxxxx Xxxx & Wxxxxxxx may rely as to the incorporation of the Company and all other matters governed by Cayman Islands laws upon the opinion of Txxxxxx Txxxx Xxxxxxx and as to all matters governed by the laws of the PRC upon the opinions of King & Wood Mallesons referred to below.
(i) certain true sale The Representative shall have received from King & Wood Mallesons, PRC counsel to the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representative may require, and nonconsolidation bankruptcy the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representative of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADSs, the execution, issuance, countersignature and delivery of the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably request.
(k) The Deposit Agreement shall be in full force and (ii) certain security interest matterseffect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Shares and the issuance of the ADSs in accordance with the Deposit Agreement.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the such Closing Date, of the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust Chief Executive Officer and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each Chief Financial Officer of the Depositor, BMW Financial Services and the UTI Beneficiary Company in which such officers shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission, the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of any applicable filing fees; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and the Subsidiaries taken as a whole, except as set forth in such certificate.
(tm) Each Class of Notes shall have been rated On or prior to the rating specified in date hereof, the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have receivedreceived Lock-Up Agreements, substantially in the form of Annex B-I hereto, from each of BMW Financial Servicesthe persons or entities named in Annex B-II hereto.
(n) The ADSs shall have been listed and admitted and authorized for trading on the NYSE.
(o) On or prior to the First Closing Date, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which Offered ADSs shall be attached certified copies eligible for clearance and settlement through the facilities of the: DTC.
(ip) certificate There shall not be any litigation, proceedings, investigations, processes for administrative sanctions or other actions initiated or threatened by any Governmental Agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare non-compliant, unlawful or illegal, under PRC laws, rules and regulations or otherwise, the issuance and sales of formationthe Offered ADSs, (ii) limited liability company agreement the listing and trading of the Offered ADSs on the NYSE or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby by this Agreement and in the Transaction Documents and (iv) designation of incumbency of each such entityDeposit Agreement.
(vq) All requirements of Rules 15Ga-2 and 17g-10 under No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Exchange Act Registration Statement, the ADS Registration Statement or the Prospectus shall have been and will be timely complied withfiled to which the Representative objects in writing.
(wr) The Depositor FINRA shall provide or cause to be provided have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel reasonably requests. The Representative may in its sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Option Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy condition that each of the representations Registration Statement, the ADS Registration Statement and warranties made herein, to the accuracy of Exchange Act Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, date hereof and to the following additional conditions precedent:
(a) On The representations and warranties of the Company and the Selling Shareholders contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of such Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates Company and the Selling Shareholders shall have been duly authorized, executed and delivered by the parties thereto, shall performed all of their respective obligations under this Agreement theretofore to be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeperformed.
(b) Both at The Representatives shall have received on such Closing Date a certificate, dated such Closing Date and signed on behalf of the Company by an executive officer of the Company, to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such Closing Date, (ii) the Company have complied with all of the agreements, performed all of their obligations and satisfied all of the conditions hereunder on their part that are required to be complied with, performed or before the date hereof, and satisfied on or before the such Closing Date, the Representative shall have received three letters, one relating Date and (iii) subsequent to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus most recent financial statements in the Registration Statement, the General Disclosure Package and covering procedures performed as of the date of the Preliminary Final Prospectus, and one relating there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed have a Material Adverse Effect except as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)the General Disclosure Package or as described in such certificate.
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Final Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(A)(a) hereof; on or prior . Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesCompany’s best knowledge, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement and prior to such Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Controlled Entities, taken as a whole, the effect of which in the reasonable judgment of the Representatives is material and adverse and, in the reasonable judgment of the Representatives, makes it impracticable to proceed with the offering, sale or delivery of the Offered Securities on such Closing Date on the terms and in the manner contemplated by this Agreement.
(e) There shall not be any material adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the reasonable judgment of the Representatives, in consultation with the Company, would make it inadvisable or impractical to proceed with the public offering or the delivery of the Offered Securities on such Closing Date on the terms and in the manner contemplated in this Agreement.
(f) The Representatives shall have received letters, dated, respectively, the date hereof and such Closing Date, of PricewaterhouseCoopers, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the letter delivered on each Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date.
(g) The Representatives shall have received the customary opinions and disclosure letter of Xxxxxxx Xxxxxxx & Xxxxxxxx, United States counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives.
(h) The Company shall have received a customary opinion from Fangda Partners, PRC counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. A copy of such opinion shall have been provided to the Representatives with consent from such counsel.
(i) The Representatives shall have received a customary opinion from Xxxxxx and Calder, Cayman Islands counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives.
(j) The Representatives shall have received from Xxxxxxxx & Xxxxxxxx, United States counsel for the Underwriters, the customary opinions and disclosure letter, dated such Closing Date, in form and substance satisfactory to the Representatives.
(k) The Representatives shall have received from King & Wood Mallesons, PRC counsel for the Underwriters, a customary opinion, dated such Closing Date, in form and substance satisfactory to the Representatives.
(l) The Representatives shall have received one or more customary opinions from U.S. counsels related to the Selling Shareholders, dated such Closing Date, in form and substance satisfactory to the Representatives.
(m) The Representatives shall have received one or more customary opinions of the Selling Shareholders’ local counsels, dated such Closing Date, in form and substance satisfactory to the Representatives.
(n) The Representatives shall have received a customary opinion from Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Depositary, in form and substance satisfactory to the Representatives.
(o) On or prior to the date hereof, the Representatives shall have received duly executed lock-up agreements from: (i) each of Xxxx Xxx Ma and Xxxxxx X. Xxxx, substantially in the form set forth in Exhibit A1; (ii) each of Yahoo! Inc., Yahoo! Hong Kong Holdings Limited, SB China Holdings Pte Ltd, SoftBank Corp. and SBBM Corporation, substantially in the form set forth in Exhibit A2; (iii) each of the non-executive directors listed in Schedule D1, substantially in the form set forth in Exhibit A3; (iv) each of the officers, partners, employees and participants in the Company’s incentive plans listed in Schedule D2, substantially in the form set forth in Exhibit A4; (v) each of the existing shareholders listed in Schedule D3, substantially in the form set forth in Exhibit A5; and (vi) Golden Web Investment Limited, substantially in the form set forth in Exhibit A6; and each of the lock-up letters referred to in clauses (i) to (vi) shall be in full force and effect on such Closing date.
(p) As of such Closing Date, the Representative Company and the Depositary shall have received executed and delivered the favorable opinion Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the Deposit Agreement.
(q) The Depositary shall have furnished or opinions of in-house counsel caused to be furnished to the Depositor and BMW Financial Services addressed Representatives at such Closing Date, certificates satisfactory to the UnderwritersRepresentatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, dated and the Closing Date execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(r) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder.
(s) Offered Securities shall have been approved to be listed on the Exchange.
(t) Each Selling Shareholder (other than Yahoo! Hong Kong Holdings Limited) shall have delivered to the Representatives a Power of Attorney and a Custody Agreement, each of which duly executed and in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives.
(eu) The Representative Yahoo! Hong Kong Holdings Limited shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel delivered to the Depositor, BMW Financial Services and Representatives an executed transfer form for the Trust, addressed Offered Shares represented by the Offered Securities to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwritersbe respectively sold by Yahoo! Hong Kong Holdings Limited hereunder.
(fv) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriterscertificate, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion an attorney-in-fact of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLPeach Selling Shareholder, in its capacity as federal tax and ERISA counsel to which the Depositor, the Vehicle Trust and the Trust, attorney-in-fact shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, such Selling Shareholder in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, correct as the case may be, of such Closing Date; such Selling Shareholder has complied with the all agreements and satisfied the all conditions on its their part to be performed or satisfied hereunder at or prior to such Closing Date; this Agreement is in the form or substantially the form approved by such Selling Shareholder; and such attorney-in-fact was duly acting as the attorney-in-fact of such Selling Shareholder at the respective times of the signing and delivery of this Agreement, the applicable lock-up agreement for such Selling Shareholder, the Custody Agreement and any other document executed and delivered by such attorney-in-fact prior to or on such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies on behalf of such opinionsSelling Shareholder, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably requestif any.
Appears in 1 contract
Samples: Underwriting Agreement (Yahoo Inc)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be Shares at the Time of Delivery are subject to the accuracy of the representations and warranties made on the part of the Corporation herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Corporation made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Corporation of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Corporation with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and the Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Corporation with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date Time of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing DateDelivery, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Corporation or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Closing DateApplicable Time and prior to the Time of Delivery, the Representative rating assigned by Xxxxx’x Investors Service, Inc., S&P Global Ratings or Fitch Ratings, Inc. (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this Agreement shall not have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersbeen lowered.
(ed) The Representative shall have received an opinion or opinions Since the respective most recent dates as of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the DepositorTime of Delivery, BMW Financial Services and there shall not have been any material adverse change in the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none condition of the DepositorCorporation, financial or otherwise, except as reflected in or contemplated by the Trust or the Vehicle Trust is required to register under the Investment Company Act Pricing Disclosure Package and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, and, since such dates and up to the Time of Delivery, there shall not have been any supplements to material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except the effect of which in your reasonable judgment is so material and adverse as set forth in to make it impracticable or contemplated inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the Prospectus manner contemplated by the Pricing Disclosure Package and the Prospectus.
(exclusive e) The Representatives shall have received an opinion of any supplement thereto)Xxxxxx X. Xxxxx III, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of the Corporation, dated the Time of Delivery, to the effect that:
(i) Each of Duke Energy Ohio, Inc., Progress Energy, Inc., and Piedmont Natural Gas Company, Inc. has been duly incorporated and is validly existing in good standing under the laws of the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus.
(ii) the representations and warranties Each of the Depositor, BMW Financial Services Corporation and the UTI BeneficiaryPrincipal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Corporation and its subsidiaries taken as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, whole.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Ratings Free Writing ProspectusRegistration Statement, the Pricing Disclosure Package or the Prospectus and is not so disclosed.
(uv) Each of this Agreement and the Deposit Agreement has been duly authorized, executed and delivered by the Corporation.
(vi) The Representative shall execution and filing of the Certificate of Designations have receivedbeen duly authorized by the Corporation, from each and the Certificate of BMW Financial ServicesDesignations has been duly executed and filed with the Secretary of State of the State of Delaware.
(vii) The execution, delivery and performance by the Corporation of this Agreement, the UTI Beneficiary Deposit Agreement and the DepositorCertificate of Designations, a certificate executed and the consummation by a secretary or assistant secretary thereof to which shall be attached certified copies the Corporation of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and thereby, including the issuance and deposit of the Preferred Shares with the Depositary against the issuance of the Shares in accordance with the terms of the Certificate of Designations and the Deposit Agreement, the issuance and sale of the Shares and compliance by the Corporation with all of the provisions of this Agreement, the Deposit Agreement and the Certificate of Designations, will not violate or contravene any of the provisions of the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject which affects in a material way the Corporation’s ability to perform its obligations under this Agreement, the Deposit Agreement or the Certificate of Designations.
(viii) No consent, approval, authorization, order, registration or qualification is required to authorize, or for the Corporation to consummate the transactions contemplated by this Agreement, the Deposit Agreement or the Certificate of Designations, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters and except as required in (i) Condition 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682 and (ii) Condition 7.6(b) of the orders of the Public Service Commission of South Carolina dated July 11, 2012 and November 2, 2016, in Docket No. 2011-158-E, which conditions have been complied with.
(ix) The Preferred Shares have been duly authorized by the Corporation and when the Preferred Shares have been issued and delivered in accordance with this Agreement and the Deposit Agreement at the Time of Delivery, will be validly issued, fully paid and nonassessable; the Shares, and the deposit of the Preferred Shares in accordance with the provisions of the Deposit Agreement, have been duly authorized by the Corporation; when the Shares have been issued and delivered and paid for and the Depositary Receipts have been duly executed and delivered by the Depositary in accordance with this Agreement and the Deposit Agreement, the Shares will be duly and validly issued and the holders thereof will be entitled to the benefits provided in the Transaction Documents Deposit Agreement and the Depositary Receipts; the Certificate of Designations will conform, as to legal matters, in all material respects to the descriptions thereof contained in the Pricing Disclosure Package and the Prospectus; and the stockholders of the Corporation have no statutory preemptive rights with respect to the Shares and the Preferred Shares.
(x) The Securities conform as to legal matters in all material respects to the descriptions thereof in (i) the Base Prospectus under the captions “Description of Preferred Stock” and “Description of Depositary Shares” and (ii) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Series A Preferred Stock” and “Description of the Depositary Shares.”
(xi) The Corporation’s authorized capital stock is as set forth in the Pricing Disclosure Package and the Prospectus and all outstanding shares of common stock of the Corporation have been duly authorized and are validly issued, fully paid and nonassessable. Such counsel may state that his opinion in paragraph (ix) is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to his attention that has caused him to believe that (i) the Registration Statement, including the Rule 430B Information, as of its effective date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus or any amendment or supplement thereto, as of their respective dates and at the Time of Delivery, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein or excluded therefrom, including XBRL interactive data or (ii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that he does not express any opinion concerning any law other than the law of the State of North Carolina or, to the extent set forth in the foregoing opinions, the federal securities laws and may rely as to all matters of the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Corporation and other sources believed by him to be responsible.
(f) The Representatives shall have received an opinion or opinions of Hunton Xxxxxxx Xxxxx LLP, counsel to the Corporation, dated the Time of Delivery, to the effect that:
(i) The Corporation has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware.
(ii) The Corporation has the corporate power and corporate authority to execute and deliver this Agreement, the Deposit Agreement and the Certificate of Designations and to consummate the transactions contemplated hereby and thereby.
(iii) Each of this Agreement and the Deposit Agreement has been duly authorized, executed and delivered by the Corporation.
(iv) designation The Deposit Agreement is a valid and binding agreement of incumbency of each such entitythe Corporation, enforceable against the Corporation in accordance with its terms.
(v) All requirements The execution and delivery by the Corporation of Rules 15Ga-2 this Agreement, the Deposit Agreement and 17g-10 under the Exchange Act have been Certificate of Designations do not and the performance of the Corporation’s obligations thereunder, including the issuance and deposit of the Preferred Shares and the issuance and sale of the Shares hereunder and thereunder, will be timely complied not (i) conflict with the Corporation’s Certificate of Incorporation or By-Laws, (ii) constitute a violation of, or a breach of or default under, the terms of any of the contracts set forth on Schedule IV hereto or (iii) violate or conflict with.
, or result in any contravention of, any Applicable Law. “Applicable Law” means the General Corporation Law of the State of Delaware and those laws, rules and regulations of the States of New York and North Carolina and those federal laws, rules and regulations of the United States of America, in each case that, in such counsel’s experience, are normally applicable to transactions of the type contemplated by this Agreement (w) The Depositor shall provide other than the United States federal securities laws, state securities or cause to be provided Blue Sky laws, antifraud laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc., the North Carolina Public Utilities Act, the rules and regulations of the North Carolina Utilities Commission and the New York State Public Service Commission and the New York State Public Service Law), but without our having made any special investigation as to the Representative conformed copies applicability of such opinionsany specific law, certificates, letters and documents as the Representative rule or counsel to the Underwriters may reasonably requestregulation.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 20212023-2 1 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & FingerXxxxxx, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius Xxxxxxx LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and FingerXxxxxx, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & FingerXxxxxx, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & FingerXxxxxx, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin Xxxxxx Xxxxxx LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (BMW Vehicle Lease Trust 2023-1)
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be each Underwriter hereunder are subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedentconditions:
(a) On Notification that the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates Registration Statement has become effective shall have been duly authorized, executed and delivered be received by the parties theretoRepresentatives not later than 3:30 p.m., shall be in full force and effect and no default shall exist thereunderChicago time, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus this Agreement or at such later date and covering procedures performed time as of the date of the Preliminary Prospectus, and one relating shall be consented to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor Representatives. If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Shares and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required price-related information previously omitted from the effective Registration Statement pursuant to be filed with the Commission such Rule 430A shall have been filed with transmitted to the Commission for filing pursuant to Rule 497(h) of the Rules and Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post- effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations and Section 7(hRegulations.
(i) hereof; on or prior to the Closing Date, no No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted orbe pending or threatened by the Commission, to (ii) no order suspending the knowledge effectiveness of the Depositor Registration Statement or BMW Financial Services, the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission.
Commission or the authorities of any such jurisdiction, (diii) On any request for additional information on the Closing Datepart of the staff of the Commission or any such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Representatives and the Representatives did not promptly object thereto in good faith, and the Representative Representatives shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriterscertificates, dated the Closing Date (and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLPthe Option Shares, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Option Closing Date, ) and signed by the Representative shall have received Chief Executive Officer and Chief Financial Officer of the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust Company and the Vehicle TrustPresident of the Company (who may, addressed as to proceedings threatened, rely upon the Underwriters, dated the Closing Date best of their information and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinionbelief), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its dateclauses (i), (ii) and (iii).
(sc) Each Since the respective dates as of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed which information is given in the Registration Statement, Statement and the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has shall not have been no event that has had a material adverse effect on change in the Depositorbusiness, BMW Financial Services business prospects, management, properties, condition (financial or otherwise) or results of operations of the UTI BeneficiaryCompany, taken as a whole, whether or not arising from transactions in the ordinary course of business, except in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus.
(d) Since the respective dates as of which information is given in the Prospectus Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company, the Investment Adviser or any of their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, business prospects, management, properties, condition (exclusive financial or otherwise) or results of any supplement thereto), operations of the Company.
(iie) Each of the representations and warranties of the DepositorCompany and Investment Adviser contained herein shall be true and correct in all material respects at the Closing Date and, BMW Financial Services and with respect to the UTI BeneficiaryOption Shares, at the Option Closing Date, as if made at the case may beClosing Date and, in this Agreement with respect to the Option Shares, at the Option Closing Date, and the Transaction Documents to which it is a party, are true all covenants and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part herein contained to be performed on the part of the Company and Investment Adviser and all conditions herein contained to be fulfilled or satisfied complied with by the Company and Investment Adviser at or prior to the Closing Date and (iv) (in and, with respect to the case of Option Shares, at or prior to the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes Option Closing Date, shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have receivedduly performed, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary fulfilled or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(wf) The Depositor Representatives shall provide or cause to be provided have received an opinion, dated the Closing Date and, with respect to the Representative conformed copies of such opinionsOption Shares, certificatesthe Option Closing Date, letters in form and documents as substance reasonably satisfactory to counsel for the Representative or Underwriters, from Jenner & Block, counsel to the Company, to the effect set forth in Exhibit A.
(g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters from Jenner & Block, counsel to Investment Adviser, to the effect set forth in Exhibit B.
(h) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, from Vedder, Price, Kaufxxx & Xammholz, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be reasonably satisfactory in all respects to the Representatives.
(i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company as required by the 1933 Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with agreed upon procedures described therein, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the date of delivery that would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the Option Closing Date.
(j) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by both the Chief Executive Officer and Chief Financial Officer and the President of the Company, in form and substance reasonably satisfactory to the Representatives, certifying to the effect that:
(i) each signer of such certificate has carefully examined the Registration Statement and the Prospectus and (A) as of the date of such certificate, such documents are true and correct in all material respects, and the Registration Statement does not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and the Prospectus does not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not untrue or misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect, in light of the circumstances under which they were made;
(ii) each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, as of the date of such certificate, true and correct in all material respects; and
(iii) each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed, and each condition herein required to be complied with by the Company on or prior to the date of such certificate, has been duly, timely and fully complied with.
(k) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Representatives a certificate of the Investment Adviser, dated as of the date of its delivery, signed by the president or a vice president of Investment Adviser, to the effect that the representations and warranties of Investment Adviser contained in Sections 3 and 4 were, when originally made, and are, at the time such certificate is dated, true and correct in all material respects.
(l) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the Option Closing Date, as the case may be.
(m) Prior to the Closing Date, the Shares shall have been duly authorized for listing by The Nasdaq SmallCap Market upon official notice of issuance.
(n) The Company and Investment Adviser shall have furnished to the Representatives such certificates, in addition to those specifically mentioned herein, as the Representatives may have reasonably requested as to the accuracy and completeness at the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company and Investment Adviser herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Representatives.
(o) At the Closing Date and the Option Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and Investment Adviser in connection with the organization and registration of the Company under the 1940 Act and the issuance and sale of the Shares as herein contemplated shall be reasonably satisfactory in all material respects in form and substance to the Representatives and counsel for the Underwriters. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 7.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Underwritten Notes will be subject to the accuracy of the representations and warranties made hereinon the part of the Seller and the Servicer herein on the date hereof and at the Closing Date, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three lettersletters dated respectively, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof(i) July 12, one relating to the Preliminary Prospectus, dated on or about 2018 and (ii) the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, this Agreement substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory agreed. Such independent public accountants shall have furnished to the Representative and counsel the third-party due diligence report referred to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B2(v).
(cb) The If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers’ certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the The representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Each Class Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of Notes which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) The representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been rated issued and no proceedings for that purpose have been instituted or, to the rating specified best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Ratings Free Writing Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the hired NRSROs context, all references to the term “material” in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan North America, Inc. (“NNA”) or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Underwritten Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Underwritten Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over the counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Underwritten Notes.
(f) At the Closing Date, Xxxx Xxxx, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel’s written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(g) At the Closing Date, Xxxxx Xxxxx LLP, special counsel to the Seller and the Servicer, shall have furnished to the Representative their written opinion, dated as of the Closing Date, with respect to general corporate matters, tax matters, matters relating to the Investment Company Act of 1940, the validity of the Notes, the Registration Statement and the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(h) At the Closing Date, Xxxxx Xxxxx LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have furnished their written opinion, dated the Closing Date, with respect to the characterization of the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(i) At the Closing Date, Sidley Austin LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Closing Date, with respect to the validity of the Notes and such other related matters as the Representative shall require, in form and substance reasonably satisfactory to the Underwriters, and the Seller shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Closing Date, Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinions addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(k) At the Closing Date, Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, shall have furnished their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(l) The Representative shall have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Seller or the Servicer, as applicable, contained in the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct in all material respects and that the Seller or the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date in all material respects.
(m) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
(un) The Representative On or prior to the Closing Date, the Seller shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of such opinions, certificates, letters further certificates and documents as the Representative or shall reasonably have required.
(o) At the Closing Date, the Representative shall have received an opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee counsel to the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters may and counsel to the Underwriters.
(p) At the Closing Date, the Representative shall have received an opinion of in-house counsel to Xxxxxxx Fixed Income Services LLC, as Asset Representations Reviewer, in form and substance reasonably requestsatisfactory to the Underwriters and counsel to the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables Corp Ii)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be The Prospectus as amended or supplemented in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect relation to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission applicable Offered Securities shall have been filed with the Commission in accordance with pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8) by the Rules and Regulations and in accordance with Section 7(h5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on or prior to the Closing Date, date hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, initiated or to the knowledge of the Depositor or BMW Financial Services, shall be contemplated Company threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(di) On the Closing Datedate hereof, the Representative PricewaterhouseCoopers LLP shall have received the favorable opinion or opinions of in-house counsel furnished to the Depositor and BMW Financial Services addressed to the UnderwritersUnderwriters a letter, dated as of the Closing Date and date hereof, in form and substance satisfactory to the Representative Underwriters, confirming that as of May 26, 2006 and counsel during the period covered by the financial statements on which it reported, it was an independent registered public accounting firm with respect to the UnderwritersCompany and its subsidiaries within the meaning of the Securities Act, the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that:
(A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the related published Rules and Regulations; and
(B) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Preliminary Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(eii) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersa letter, dated the Closing Date and addressing corporateDate, enforceability and securities matters satisfactory of PricewaterhouseCoopers LLP which meets the requirements of subsection (b)(i) of this Section, except that (A) the specified date referred to in form and substance such subsection will be a date not more than three days prior to the Representative Closing Date for the purposes of this subsection, and counsel (B) references to the UnderwritersPreliminary Prospectus will be replaced with references to the Prospectus.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Datedate hereof, the Representative Deloitte & Touche LLP shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed furnished to the UnderwritersUnderwriters a letter, dated as of the Closing Date and date hereof, in form and substance satisfactory to the Representative and counsel Underwriters, confirming that they are an independent registered public accounting firm with respect to the UnderwritersCompany and its subsidiaries within the meaning of the Securities Act, the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that:
(A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the related published Rules and Regulations;
(B) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(1) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than one business day prior to the date of this Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in total shareholders’ equity or total consolidated net current assets, as compared with amounts shown on the latest balance sheet incorporated by reference in the Preliminary Prospectus; or
(2) for the period from the closing date of the latest statement of income incorporated by reference in the Preliminary Prospectus to the closing date of the latest statement of income read by such accountants, there were any decreases, as compared with the corresponding period of the previous year, in consolidated revenue or net income (excluding decreases due to derivatives accounted for under Statement of Financial Accounting Standards No. 133); and
(B) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Preliminary Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(iii) On The Underwriters shall have received a letter, dated the Closing Date, of Deloitte & Touche LLP which meets the Representative requirements of subsection (c)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not more than one day prior to the Closing Date for the purposes of this subsection, and (B) references to the Preliminary Prospectus will be replaced with references to the Prospectus.
(d) Subsequent to the Applicable Time, there shall not have been (i) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Underwriters, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Underwriters, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(e) The Underwriters shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwritersan opinion, dated the Closing Date and Date, of Xxxx X. Xxxxxx, General Counsel of the Company, substantially in the form of Exhibit A hereto.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of Xxxxxxx Coie LLP, special counsel to the Company, in substantially the form of Exhibit B hereto.
(g) The Underwriters shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, Company shall have furnished to such counsel such documents as they request for the Representative purpose of enabling them to pass upon such opinions or negative assurance letters addressed matters. In rendering such opinion, Xxxxxx & Xxxxxxx LLP may rely as to the incorporation of the Company and all other matters governed by Oregon law upon the opinion of Xxxx X. Xxxxxx referred to above.
(h) The Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services President or any Vice President and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, shall state that: (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect; (iiiii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date Date; and (iviii) (that, subsequent to the date of the most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the case financial condition, business or results of operations of the Depositor Company and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified its subsidiaries taken as a whole except as set forth in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary Disclosure Package and the Depositor, a certificate executed by a secretary Prospectus or assistant secretary thereof to which shall be attached certified copies of the: as described in such certificate. The Company will (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing furnish the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each Underwriters with such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Underwriters reasonably request. The Underwriters may waive compliance with any conditions to their obligations hereunder.
A. The Company (i) represents and agrees that, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of the Underwriters, it has not made and will not make any offer relating to the Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act and (ii) has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.
B. each Underwriter represents and agrees that, without the prior consent of the Company and the Underwriters, other than one or more term sheets relating to the Offered Securities containing customary information, it has not made and will not make any offer relating to the Offered Securities that would constitute a free writing prospectus; and
C. any such free writing prospectus the use of which has been consented to by the Company and the Underwriters may reasonably request.(including the final term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule B hereto;
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of the Seller and the Servicer herein on the date hereof and at the Closing Date, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three lettersletters dated respectively, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof(i) October 11, one relating to the Preliminary Prospectus, dated on or about 2023 and (ii) the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, this Agreement substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory agreed. Such independent public accountants shall have furnished to the Representative and counsel the third-party due diligence report referred to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B2(v).
(cb) The If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers’ certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the The representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Each Class Except as otherwise set forth in the Preliminary Prospectus or the Final Prospectus, as applicable, there has been no material adverse change, since the respective dates as of Notes which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) The representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been rated issued and no proceedings for that purpose have been instituted or, to the rating specified best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth in the Ratings Free Writing Preliminary Prospectus or the Final Prospectus, as applicable, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the hired NRSROs context, all references to the term “material” in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan North America, Inc. (“NNA”) or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over the counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Closing Date, Xxxx X. Xxxxxx, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel’s written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(g) At the Closing Date, Xxxxx Xxxxx LLP, special counsel to the Seller and the Servicer, shall have furnished to the Representative their written opinion, dated as of the Closing Date, with respect to general corporate matters, tax matters, matters relating to the 1940 Act, the validity of the Notes, the Registration Statement and the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(h) At the Closing Date, Xxxxx Xxxxx LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have furnished their written opinion, dated the Closing Date, with respect to the characterization of the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(i) At the Closing Date, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Closing Date, with respect to the validity of the Notes and such other related matters as the Representative shall require, in form and substance reasonably satisfactory to the Underwriters, and the Seller shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Closing Date, Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinions addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(k) At the Closing Date, Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, shall have furnished their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(l) The Representative shall have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Seller or the Servicer, as applicable, contained in the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct in all material respects and that the Seller or the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date in all material respects.
(m) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
. (un) The Representative On or prior to the Closing Date, the Seller shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of such opinions, certificates, letters further certificates and documents as the Representative or shall reasonably have required.
(o) At the Closing Date, the Representative shall have received an opinion of in-house counsel to Xxxxxxx Fixed Income Services LLC, as Asset Representations Reviewer, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters may reasonably requestUnderwriters.
Appears in 1 contract
Samples: Underwriting Agreement (NISSAN AUTO RECEIVABLES Co II LLC)
Conditions of the Obligations of the Underwriters. The obligations obligation of the ------------------------------------------------- several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Seller and World Omni herein, to the accuracy of the statements of the respective officers of the Depositor Seller and BMW Financial Services World Omni made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services World Omni of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes Representative and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy thereof orletter, with respect to dated the Notes and Certificatesdate thereof, a conformed copy thereof. The Transaction Documents, of Xxxxxx Xxxxxxxx confirming that they are independent public accountants within the SUBI Certificate, meaning of the Notes Act and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, Rules and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the draft or drafts to which the Representative has previously agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to for the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller, World Omni or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none certificates of the DepositorPresident, the Trust any Vice President or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes Treasurer or any Assistant Treasurer of each of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform Seller and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from XxxxxxWorld Omni, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and each dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestin which such officer shall state, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course case of business, except as set forth in or contemplated in (A) the Prospectus Seller that (exclusive of any supplement thereto), (ii1) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents each Basic Document to which it is a party, are party and in this Agreement were true and correctcorrect as of the date therein indicated, (iii2) to the Depositorbest knowledge of such officer after reasonable investigation, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
Commission and (t3) Each Class subsequent to the date of Notes shall have this Agreement, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Seller, except as set forth in or contemplated by the hired NRSROs specified Prospectus and (B) World Omni, that (1) the representations and warranties of World Omni in each Basic Document to which it is a party and in this Agreement were true and correct as of the date therein indicated, (2) to the best knowledge of such officer after reasonable investigation, World Omni has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and (3) subsequent to the date of this Agreement, there has been no material adverse change in the Ratings Free Writing condition, financial or otherwise, or in the earnings, business affairs or business prospects of World Omni except as set forth in or contemplated by the Prospectus.
(ud) The Representative shall have received:
(1) The favorable opinion of Xxxxxxxx & Xxxxx, from each of BMW Financial Servicescounsel to the Seller and World Omni, dated the UTI Beneficiary Closing Date and satisfactory in form and substance to the DepositorRepresentative and counsel for the Underwriters, a certificate executed by a secretary or assistant secretary thereof substantially to which shall be attached certified copies of the: the effect that:
(i) certificate When paid for by the Underwriters in accordance with the terms of formationthis Agreement (assuming the due authorization, execution and delivery of the Indenture by the Indenture Trustee and the Trust, the due execution of the Notes by the Trust, and the due authentication and delivery of the Notes by the Indenture Trustee in accordance with the Indenture), the Notes will constitute the valid and binding obligations of the Trust, and will be enforceable against the Trust in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to creditors rights generally, and to general principles of equity including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and will be validly issued and outstanding and entitled to the benefits provided by the Indenture.
(ii) limited liability company agreement Assuming the due authorization of this Agreement and each Basic Document to which World Omni is a party, World Omni has duly executed and delivered this Agreement and each such Basic Document. Assuming the due authorization, execution and delivery thereof by the parties thereto (other than due execution and delivery by World Omni), this Agreement and each of the Basic Documents (other than the Trust Agreement) to which the Seller, World Omni or limited partnership agreementthe Trust is a party constitutes the legal, valid and binding obligation of the Seller, World Omni or the Trust, as applicable, and is enforceable against the Seller, World Omni or the Trust, as applicable, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors' rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set-off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(iii) applicable resolutions authorizing To the transactions contemplated hereby knowledge of such counsel, there is no legal or governmental proceeding that is pending or threatened against the Seller that has caused such counsel to conclude that such proceeding is required by Item 103 of Regulation S-K to be described in the Prospectus but that is not so described.
(iv) The statements in the Prospectus Supplement under the headings "Summary of Terms," "Risk Factors," "Description of the Notes" and "Description of the Trust Documents" and in the Transaction Base Prospectus under the headings "Risk Factors," "Description of the Securities," "Description of the Notes" and "Description of the Trust Documents" insofar as such statements purport to summarize certain terms or provisions of the Notes and the Basic Documents and (iv) designation provide a fair summary of incumbency of each such entityprovisions.
(v) All requirements of Rules 15Ga-2 and 17g-10 The statements in the Prospectus Supplement under the Exchange Act headings "Federal Income Tax Consequences" and "ERISA Considerations" and in the Base Prospectus under the headings "Some Legal Aspects of the Receivables," "Federal Income Tax Consequences" and "ERISA Considerations" to the extent such statements relate to the Notes and purport to summarize matters of federal law or legal conclusions with respect thereto have been reviewed by such counsel and will be timely complied withare correct in all material respects.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (World Omni Auto Receivables LLC)
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties of the Company and the Manager herein (as though made hereinon such Closing Date), to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Manager of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Underwriters shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectusletter, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectusthis Agreement, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG Xxxxx Xxxxxxxx LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative Representative, confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and counsel the applicable Securities Act Regulations and the rules and regulations of the PCAOB and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Underwriters; providedfinancial statements and certain financial information contained in the Registration Statement, the General Disclosure Package, the Prospectus and each Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectus that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth is an “electronic road show,” as defined in Section 2(a)(xxxvii)(BRule 433(h)).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Securities Act Regulations and Section 7(h5(c) hereof; on or prior of this Agreement.
(c) Prior to the such Closing Date, Date (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the General Disclosure Package shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representative, shall be contemplated by the CommissionCommission nor shall there be any suspension of the qualification of the Offered Securities for sale in any jurisdiction or institution or threatening of any proceeding for such purpose and (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representative.
(d) On Subsequent to the Closing Dateexecution and delivery of this Agreement there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, earnings, properties, results of operations (as described in the Prospectus), assets or prospects of the Company and the Subsidiaries taken as one enterprise which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the NYSE or The Nasdaq Global Select Market, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative, the Representative shall have received effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the favorable opinion public offering or opinions the sale of in-house counsel to and payment for the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersOffered Securities.
(e) The Representative Underwriters shall have received an opinion, dated the Closing Date, of Ledgewood, counsel for the Company, substantially in the form attached hereto as Exhibit A hereto. In rendering such opinion, Ledgewood may rely as to the incorporation of the Company and all other matters governed by Maryland law upon the opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special Maryland counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersCompany.
(f) The Representative Underwriters shall have received an opinion or opinions opinion, dated such Closing Date, of Xxxxxx, Xxxxx & Bockius Lardner LLP, special Maryland counsel to for the DepositorCompany, BMW Financial Services and substantially in the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so form attached hereto as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActExhibit B hereto.
(g) The Representative Underwriters shall have received a negative assurance letter from Xxxxxxtax opinion, Xxxxx & Bockius LLPdated such Closing Date, of Ledgewood, counsel to for the DepositorCompany, BMW Financial Services and substantially in the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwritersattached hereto as Exhibit C hereto.
(h) On the The Underwriters shall have received an opinion, dated such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.and Xxxxxx, special Delaware Cayman Islands counsel for the Depositor and BMW Financial ServicesCompany, addressed to substantially in the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersattached hereto as Exhibit D hereto.
(i) On the Closing Date, the Representative shall have received the favorable opinion date of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date this Agreement and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On on the Closing Date, the Representative Underwriters shall have received a certificate of the favorable opinion or opinions of XxxxxxCompany’s Chief Financial Officer (a “CFO Certificate”), Xxxxx dated the date the CFO Certificate is delivered, substantially in the form attached hereto as Exhibit E.
(j) The Underwriters shall have received from Hunton & Xxxxxxx Xxxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to for the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an such opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwritersor opinions, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the incorporation of the Company, the validity of the Offered Securities delivered on such Closing Date, the Registration Statement, the General Disclosure Package and the Prospectus and other related matters as the Representative Underwriter may reasonably requestrequire, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary Company shall have furnished to such counsel such documents as they request for the Representative a certificate purpose of each enabling them to pass upon such matters. In rendering such opinion, Hunton & Xxxxxxxx LLP may rely as to the incorporation of the Depositor, BMW Financial Services Company and all other matters governed by Maryland law upon the UTI Beneficiary, as applicable, signed by its Chairman opinion of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicableXxxxx & Lardner LLP referred to above.
(k) The Underwriters shall have received a certificate, dated the such Closing Date, to of the effect that Chief Executive Officer or President and a principal financial or accounting officer of the signer of Company in which such certificate has reviewed the Registration Statementofficers, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, shall state that (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services Company and the UTI Beneficiary, as the case may be, Manager in this Agreement and the Transaction Documents to which it is a party, are true and correct, ; (iiiii) the Depositor, BMW Financial Services Company and the UTI Beneficiary, as the case may be, has Manager have complied with the all agreements and satisfied the all conditions on its their part to be performed or satisfied hereunder at or prior to the such Closing Date and Date; (iviii) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference therein has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents Commission and (iv) designation subsequent to the respective dates of incumbency of each the most recent financial statements in the General Disclosure Package, there has been no Material Adverse Effect except as set forth in the General Disclosure Package and the Prospectus or as described in such entitycertificate. In addition to the matters set forth in this subsection (i), the certificate shall also address certain matters, representations, warranties, covenants agreements and conditions addressed in this Agreement or as may be reasonably requested.
(vl) All The Underwriter shall have received a letter, dated such Closing Date, of Xxxxx Xxxxxxxx LLP which meets the requirements of Rules 15Ga-2 and 17g-10 under subsection (a) of this Section, except that the Exchange Act have been and specified date referred to in such subsection will be timely complied witha date not more than three days prior to such Closing Date for the purposes of this subsection.
(wm) On or prior to the date of this Agreement, the Underwriter shall have received lock-up letters in substantially the form attached hereto as Exhibit F (the “Lock-Up Agreements”) from each of the executive officers and directors of the Company, members of the Company’s investment committee, the Manager, and Resource America.
(n) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Depositor Offered Securities shall provide or cause have been approved for listing on the NYSE, subject only to be provided official notice of issuance.
(p) The Company shall have furnished to the Underwriters at the First Closing Date and each Optional Closing Date (if any) such further customary information, opinions, certificates, letters and documents as the Representative may reasonably request. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel reasonably requests. The Representative may in its sole discretion waive compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned hereof or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may reasonably requestbe canceled at, or any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Notes will be hereunder are subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor Bank and BMW Financial Services the Seller of their respective obligations hereunder, hereunder and under the applicable Terms Agreement and to the following additional conditions precedentconditions:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Representative shall have received a fully executed copy thereof orletter, with respect to dated the Notes and CertificatesClosing Date, a conformed copy thereof. The Transaction Documentsof KPMG LLP, Certified Public Accountants (or such other independent accountants as shall be named in the SUBI Certificate, applicable Terms Agreement) confirming that they are independent public accountants within the Notes meaning of the Act and the Certificates shall be applicable published Rules and Regulations thereunder and stating that the engagement to apply agreed-upon procedures was performed in accordance with the standards established by the American Institute of Certified Public Accountants, and substantially in the forms form heretofore provided agreed and otherwise in form and in substance satisfactory to the Representativeits counsel.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Rules and Regulations and in accordance with Section 7(h6(a) hereofof this Agreement; on or prior to and, as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued be in effect, and no proceedings for that such purpose shall have been instituted be pending before or, to the knowledge of the Depositor Bank or BMW Financial Servicesthe Seller, shall be contemplated threatened by the Commission; and all requests for additional information from the Commission with respect to the Registration Statement shall have been complied with to the satisfaction of the Representative.
(c) The representations and warranties of the Bank and the Seller contained herein are true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date, and each of the Bank and the Seller shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and, as applicable, under the applicable Terms Agreement at or prior to the Closing Date.
(d) On The Representative shall have received, with respect to the Bank, an opinion of the Chief Legal Officer or a Deputy General Counsel of BANK ONE CORPORATION, or other officer of the Bank acceptable to the Representative, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Representative and counsel its counsel, with respect to the Underwritersgeneral corporate matters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx XxXxx Xxxxxx LLP, special counsel to for the Depositor, BMW Financial Services Seller and the TrustIssuer, addressed subject to the Underwriterscustomary qualifications, assumptions, limitations and exceptions, dated the Closing Date and addressing corporateDate, enforceability and securities matters satisfactory in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, the validity of the Notes, the Registration Statement, the Prospectus Supplement and the Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement, the Prospectus Supplement and the Prospectus. Such counsel also shall state that they have participated in conferences with representatives of the Bank and its accountants and the Underwriters concerning the Registration Statement and the Prospectus and have considered the matters required to be stated therein and the matters stated therein, although they are not independently verifying the accuracy, completeness or fairness of such statements and based upon and subject to the foregoing, nothing has come to such counsel’s attention to cause such counsel to believe that the UnderwritersRegistration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment in this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement or the Prospectus).
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius XxXxx Xxxxxx LLP, special counsel to for the Depositor, BMW Financial Services Seller and the TrustIssuer, addressed subject to the Underwriterscustomary qualifications, assumptions, limitations and exceptions, dated the Closing Date Date, in form and addressing substance reasonably satisfactory to the following issues (i) none Representative and its counsel, with respect to certain matters relating to the transfer of the DepositorReceivables from the Bank to the Seller and the Seller to the Trust and the perfection of the Trust’s interest in the Receivables. In addition, the Trust or Representative shall have received a reliance letter with respect to any opinion that the Vehicle Trust Seller is required to register under the Investment Company Act and (ii) the Trust is structured so as not deliver to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actany Rating Agency.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius XxXxx Xxxxxx LLP, special counsel to for the Depositor, BMW Financial Services Seller and the TrustIssuer, addressed such opinion or opinions, subject to the Underwriterscustomary qualifications, assumptions, limitations and exceptions, dated the Closing Date satisfactory Date, in form and substance reasonably satisfactory to the Representative, with respect to the applicability of certain provisions of the Federal Deposit Insurance Act, as amended by the Financial Institutions, Reform, Recovery and Enforcement Act of 1989 with respect to the effect of receivership on the Seller’s security interest in the Receivables, and with respect to other related matters in a form previously approved by the Representative and counsel to the Underwriters.
(h) On the Closing Dateits counsel. In addition, the Representative shall have received a reliance letter with respect to any opinion that the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed Seller is required to the Underwriters, dated the Closing Date and in form and substance satisfactory deliver to the Representative and counsel to the Underwritersany Rating Agency.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(lh) The Representative shall have received an opinion of Xxxxxxx and XxXxx Xxxxxx LLP, special tax counsel for the Seller and the Issuer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel, that (i) the Notes will be characterized as debt for Federal income tax purposes; (ii) the Issuer will not be classified as an association, or publicly traded partnership, taxable as a corporation for Federal income tax purposes; and (iii) the statements in the Prospectus under “Federal Income Tax Consequences,” insofar as such statements constitute a summary of the U.S. legal matters or documents referred to therein, fairly present such legal matters or documents.
(i) The Representative shall have received an opinion of [______________], counsel to the Indenture Trustee, addressed subject to the Underwriterscustomary qualifications, assumptions, limitations and exceptions, dated the Closing Date and satisfactory Date, in form and substance reasonably satisfactory to the Representative and counsel its counsel, with respect to general corporate matters relating to the UnderwritersIndenture Trustee.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(nj) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed subject to the Underwriterscustomary qualifications, assumptions, limitations and exceptions dated the Closing Date and satisfactory Date, in form and substance reasonably satisfactory to the Representative and counsel its counsel, with respect to general corporate matters relating to the UnderwritersOwner Trustee.
(ok) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust Issuer, subject to customary qualifications, assumptions, limitations and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and exceptions dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to certain securities law issues matters relating to the Issuer and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such mattersestablishment thereof.
(rl) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each a Vice President or more senior officer of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial Seller in which such officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigationdue inquiry, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event shall state that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects on and as of the Closing Date, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date Date, that the representations and (iv) (warranties of the Seller in the case Basic Documents to which it is a party are true and correct in all material respects as of the Depositor and BMW Financial Services only) dates specified in the respective Basic Document, that the Registration Statement has become effective, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending threatened by the Commission and that, subsequent to the date of the Prospectus, there has been no material adverse change in the financial position or are results of operation of the Seller’s business except as set forth in or contemplated by the CommissionProspectus or as described in such certificate.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(um) The Representative shall have receivedreceived a certificate, from each dated the Closing Date, of BMW Financial Servicesan authorized representative of the Bank in which such representative, to his or her knowledge after due inquiry, shall state that the UTI Beneficiary representations and warranties of the DepositorBank in this Agreement are true and correct in all material respects on and as of the Closing Date, a certificate executed by a secretary that the Bank has complied with all agreements and satisfied all conditions on its part to be performed or assistant secretary thereof satisfied hereunder and under the applicable Terms Agreement at or prior to the Closing Date, that the representations and warranties of the Bank in the Basic Documents to which shall be attached certified copies it is a party are true and correct in all material respects as of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and dates specified in the Transaction Documents respective Basic Document, and (iv) designation that, subsequent to the date of incumbency the Prospectus, there has been no material adverse change in the financial position or results of each operation of the Bank’s motor vehicle retail installment sale contract business except as set forth in or contemplated by the Prospectus or as described in such entitycertificate.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(wn) The Depositor Representative shall provide have received evidence satisfactory to it that the Notes shall be rated in accordance with the applicable Terms Agreement by each Rating Agency. The Seller will furnish the Representative, or cause it to be provided to the Representative furnished with, such number of conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may it reasonably requestrequests.
Appears in 1 contract
Samples: Underwriting Agreement (Bank One Auto Securitization LLC)
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made by the Transferor and the Bank herein, to the accuracy of the statements of officers of the Depositor Transferor and BMW Financial Services the Bank made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor and BMW Financial Services the Bank of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, or prior to each of the Transaction Documents, the SUBI Certificate, the Notes date of this Agreement and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative Representatives shall have received three letters, one relating to the 2021-2 Leases dated as an agreed upon procedures letter of a date at least five business days prior to the date hereof, one relating to the Preliminary ProspectusDeloitte & Touche LLP, dated on or about prior to the date of the Preliminary Prospectus and covering procedures performed as Supplement or Prospectus Supplement, respectively, confirming that they are independent public accountants within the meaning of the date of Act and the Preliminary Prospectusapplicable published Rules and Regulations thereunder, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, which letter shall be substantially in the form of the drafts heretofore agreed to which the Representative has agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative Representatives and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)their counsel.
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereofof this Agreement; on or and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(dc) On Subsequent to the Closing Dateexecution and delivery of this Agreement none of the following shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the Representative American Stock Exchange or the over-the-counter market shall have received been suspended, limited or minimum prices shall have been established on either of such exchanges or such market by the favorable opinion Commission, by such exchange or opinions by any other regulatory body or governmental authority having jurisdiction or any suspension of intrading of any securities of the Certificate Trust, the Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of their Affiliates on any exchange or in the over-house counsel the-counter market; (ii) a banking moratorium shall have been declared by Federal or state authorities; (iii) any downgrading in the rating of any debt securities of the Certificate Trust, the Issuer, the Bank, the Transferor, First National of Nebraska, Inc. or any of their Affiliates by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or any other substantial national or international calamity or emergency which, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the Depositor completion and BMW Financial Services addressed sale of and payment for the Notes; and (v) any material adverse change in the financial markets for asset-backed securities in the United States which, in the Representatives' judgment, makes it impractical to proceed with completion of the Underwriters, dated sale of and payment for the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersNotes.
(ed) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinions, dated the Closing Date Date, of Xxxxx Xxxx LLP, special counsel to the Transferor and addressing corporatethe Bank, enforceability and securities matters satisfactory in form and substance to the Representative Representatives and their counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.effect that:
(i) On The Transferor is a limited liability company in good standing, duly organized and validly existing under the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each laws of the DepositorState of Nebraska; the Bank is a national banking association in good standing, BMW Financial Services duly organized and validly existing under the UTI Beneficiary shall have furnished to laws of the Representative a certificate United States of America; and each of the Depositor, BMW Financial Services Transferor and the UTI BeneficiaryBank (each referred to in this subsection (d) as a "FNBO Entity") is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, as applicable, signed by and has full power and authority to own its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Dateproperties, to the effect that the signer of such certificate has reviewed conduct its business as described in the Registration Statement, Statement and the Prospectus, any supplements to the Prospectus enter into and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and perform its obligations under the Transaction Documents to which it is a party, are true and correctto consummate the transactions contemplated thereby.
(ii) Each of the Transaction Documents and this Agreement has been duly authorized, executed and delivered by each FNBO Entity that is a party thereto.
(iii) Neither the Depositorexecution and delivery of the Transaction Documents and this Agreement by either FNBO Entity that is party thereto nor the consummation of any of the transactions contemplated therein nor the fulfillment of the terms thereof, BMW Financial Services and the UTI Beneficiaryconflicts with or violates, results in a material breach of or constitutes a default under (A) any Requirements of Law applicable to such FNBO Entity, (B) any term or provision of any order known to such firm to be currently applicable to such FNBO Entity of any court, regulatory body, administrative agency or governmental body having jurisdiction over such FNBO Entity or (C) any term or provision of any indenture or other agreement or instrument known to such firm to which such FNBO Entity is a party or by which either of them or any of their properties are bound and, as the case may beto FNBO, which has complied with the agreements and satisfied the conditions on its part been identified to be performed or satisfied at or prior us as material to the Closing Date and business or operations of FNBO.
(iv) Except as otherwise disclosed in the Prospectus (and any supplement thereto) or the Registration Statement, there is no pending or, to the best of such firm's knowledge, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Certificate Trust, the Issuer, the Collateral Certificate, the Notes or any of the Transaction Documents or any of the transactions contemplated therein with respect to an FNBO Entity which, in the case of any such action, suit or proceeding if adversely determined, would have a material adverse effect on the Depositor Notes, the Collateral Certificate, the Certificate Trust or the Issuer or upon the ability of either FNBO Entity to perform its obligations under the Transaction Documents.
(v) Each of the Transaction Documents to which an FNBO Entity is a party constitutes the legal, valid and BMW Financial Services onlybinding agreement of such Person under the laws of Nebraska, enforceable against each such Person in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC.
(vi) This Agreement constitutes the legal, valid and binding obligation of the Transferor and the Bank under the laws of the State of New York, enforceable against the Transferor and the Bank in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(vii) The Notes are in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified in this Agreement, they will be validly issued and outstanding, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and will be entitled to the benefits of the Indenture, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC.
(viii) The Collateral Certificate is in due and proper form, validly issued and outstanding and constitutes the legal, valid and binding obligation of the Certificate Trust, enforceable against the Certificate Trust in accordance with its terms and is entitled to the benefits of the Pooling and Servicing Agreement, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(ix) The Registration Statement has become effective under the Act, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b). To the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are threatened or contemplated by the Commission.
(tx) Each Class The statements in the Base Prospectus under the headings "Risk Factors -- If a conservator or receiver were appointed for First National Bank of Notes shall Omaha, or if we become a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Structural Summary -- Tax Status" and " -- ERISA Considerations" to the extent that they constitute matters of law or legal conclusions with respect thereto, have been rated the rating specified reviewed by us and are correct in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectusall material respects.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (First National Funding LLC)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Company with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at On or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Xxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPX. Xxxxxxxx, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Indenture Trustee, addressed Company) (or other appropriate counsel reasonably satisfactory to the UnderwritersRepresentatives, dated the Closing Date and satisfactory which may include Duke Energy Corporation’s other “in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinionhouse” counsel), dated the Closing Date, to the effect that that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the Underwriters may rely on each such opinion laws of the State of Florida, with power and authority (limited liability company and other) to own its properties and conduct its business as described in the same extent as though such opinion was addressed Pricing Disclosure Package and the Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Company is duly qualified to do business in each jurisdiction in which the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, Company.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCompany.
(wvi) The Depositor issue and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles of Organization or the Limited Liability Company Operating Agreement, the Florida Revised Limited Liability Company Act or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company is a party or by which it or its property is bound or to which any of its property or assets is subject or any instrument filed or incorporated by reference as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2016 or any subsequent Quarterly Report on Form 10-Q of the Company or Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2016 which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes.
(vii) The Florida Public Service Commission has issued an appropriate order with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such order is still in effect and the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such order.
(viii) The Indenture has been duly qualified under the 1939 Act.
(ix) The Indenture has been duly and validly authorized by all necessary limited liability company action and has been duly and validly executed and delivered by the Company.
(x) The Notes have been duly authorized, executed and issued by the Company.
(xi) No consent, approval, authorization, order, registration or qualification of or with any federal or Florida governmental agency or body or, to such counsel’s knowledge, any federal or Florida court, which has not been obtained or taken and is not in full force and effect, is required for the issue and sale of the Notes by the Company and the compliance by the Company with all of the provisions of this Agreement, except for the registration under the 1933 Act of the Notes, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus or any amendment or supplement thereto, as of their respective dates, or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the Representative conformed copies financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom including XBRL interactive data, (ii) the statement of eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such opinionscounsel may state that such counsel has relied as to certain factual matters on information obtained from public officials, certificatesofficers of the Company and other sources believed by such counsel to be responsible.
(f) You shall have received an opinion of Hunton & Xxxxxxxx LLP, letters and documents as the Representative or counsel to the Underwriters Company, dated the Closing Date, to the effect that:
(i) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(ii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby.
(iii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.
(vi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as they purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(vii) The Indenture constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(viii) The Notes, when duly authorized and executed by the Company, duly authenticated by the Trustee in accordance with the provisions of the Indenture and delivered by the Company against payment therefor in accordance with the terms of the Agreement and the Indenture, will constitute the valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms. Such counsel may reasonably request.state that such counsel’s opinions in paragraphs (vii) and (viii) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and by general
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties made hereinon the part of the Company herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, and to the following additional conditions precedentconditions:
(a) On The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 1:00 P.M., Chicago Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 1:00 P.M., Chicago Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, each of as the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Datecase may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company will provide evidence satisfactory to the Representative of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Representative.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and the Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, the Disclosure Package and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment.
(d) On You shall not have advised the Closing DateCompany that the Registration Statement, the Representative shall have received Disclosure Package or the favorable Prospectus or any amendment or supplement thereto, contains an untrue statement of fact, which, in the opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to for the Underwriters, dated is material or omits to state a fact which, in the Closing Date opinion of such counsel, is material and in form and substance satisfactory is required to be stated therein or necessary to make the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the Trustbusiness or properties of the Company or its subsidiaries, addressed whether or not arising in the ordinary course of business, which, in the judgment of the Representative, makes it impractical or inadvisable to proceed with the Underwriters, dated public offering or purchase of the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersShares as contemplated hereby.
(f) The Representative There shall have received an opinion or opinions been furnished to you, as Representative of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated on the First Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Second Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.except as otherwise expressly provided below:
(i) On the Closing Date, the Representative shall have received the favorable An opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx Gxxxxxx Procter LLP, counsel to for the Indenture TrusteeCompany, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement form and substance reasonably satisfactory to the Representative, and the Transaction Documents Company shall have furnished to which it is a partysuch counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(ii) Such opinion or opinions of Sidley Austin LLP, are true and correctcounsel for the Underwriters, (iii) dated the Depositor, BMW Financial Services and First Closing Date or the UTI BeneficiarySecond Closing Date, as the case may be, with respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(iii) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(1) the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and
(2) the Closing Date and (iv) (in Commission has not issued an order preventing or suspending the case use of the Depositor and BMW Financial Services only) that Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or are contemplated by under the Commission1933 Act. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1) and (2) of this subparagraph to be set forth in said certificate.
(tiv) Each Class At the time the Pricing Agreement is executed and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you a letter addressed to you, as Representative of Notes the Underwriters, from Gxxxx Xxxxxxxx LLP, independent accountants, the first one to be dated the date of the Pricing Agreement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, in form and substance reasonably satisfactory to you. There shall not have been rated the rating any change or decrease specified in the Ratings Free Writing Prospectus by the hired NRSROs specified letters referred to in this subparagraph which makes it impractical or inadvisable in the Ratings Free Writing Prospectus.
(u) The judgment of the Representative shall have received, from each to proceed with the public offering or purchase of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, Shares as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityhereby.
(v) Such further certificates and documents as you may reasonably request. All requirements of Rules 15Ga-2 such opinions, certificates, letters and 17g-10 under documents shall be in compliance with the Exchange Act have been provisions hereof only if they are satisfactory to you and will to Sidley Austin LLP, counsel for the Underwriters, which approval shall not be timely complied with.
(w) unreasonably withheld. The Depositor Company shall provide furnish you with such manually signed or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel you request. If any condition to the Underwriters may reasonably requestUnderwriters' obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of any Underwriter or the Company, except for the expenses to be paid or reimbursed by the Company pursuant to Sections 7 and 9 hereof and except to the extent provided in Section 11 hereof.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm ADSs on the First Closing Date and the Optional ADSs to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company and the Selling Shareholders herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Shareholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Representatives shall have received a fully executed copy letter, dated the date of delivery thereof or, with respect (which shall be on or prior to the Notes and Certificatesdate of this Agreement), a conformed copy thereof. The Transaction Documents, of Deloitte Touche Tohmatsu CPA Ltd. confirming that they are independent public accountants within the SUBI Certificate, meaning of the Notes Act and the Certificates shall be substantially applicable published Rules and Regulations thereunder and stating in the forms heretofore provided form and substance satisfactory to the RepresentativeRepresentatives as set forth as Exhibit B attached hereto.
(b) Both at or before If the date hereof, Effective Time of the Additional Registration Statement (if any) and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days ADS Registration Statement is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of time the Prospectus is printed and covering procedures performed as of the date of the Prospectusdistributed to any Underwriter, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters or shall have received the Accountant’s Due Diligence Report occurred at or prior such later date as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representatives. The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of any Selling Shareholder, the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), earnings, business, properties or results of operations of the Company and its Group Entities taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered ADSs on the terms and in the manner contemplated in the Registration Statement.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of O’Melveny & Xxxxx LLP, United States counsel for the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services Company, addressed to the Underwriters, dated in the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives as set forth as Exhibit C attached hereto.
(e) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxXxxxxxx Xxxx & Xxxxxxx, Xxxxx & Xxxxxxx LLP, Cayman Islands counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated in the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives as set forth as Exhibit D attached hereto.
(f) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxHarneys, Xxxxx & Bockius LLP, BVI counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated in the Closing Date form and addressing substance satisfactory to the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so Representatives as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actset forth as Exhibit E attached hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxxan opinion, Xxxxx dated such Closing Date, of Haiwen & Bockius LLPPartners, PRC counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated in the Closing Date satisfactory in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives as set forth as Exhibit F attached hereto.
(h) On the The Representatives shall have received an opinion, dated such Closing Date, the Representative shall have received the favorable opinion of XxxxxxxxHarneys, Xxxxxx & Finger, P.A., special Delaware BVI counsel for the Depositor and BMW Financial ServicesSelling Shareholders, addressed to the Underwriters, dated substantially in the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives as set forth as Exhibit G attached hereto.
(i) On the The Representatives shall have received an opinion, dated such Closing Date, the Representative shall have received the favorable opinion of Xxxxxx O’Melveny & Xxxxxxxxx Xxxxx LLP, special Indiana United States counsel to the UTI Beneficiaryfor certain Selling Shareholders including HJX Holdings Ltd., New Super Group Limted, Moral Gain Limited, Reach General International Limited and TechIdea Group Limited, addressed to the Underwriters, dated in the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives as set forth as Exhibit H attached hereto.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, The Representatives shall have delivered received an opinion addressed to the Underwritersopinion, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the such Closing Date, the Representative shall have received the favorable opinion or opinions of XxxxxxXXXX X. XXXXX & ASSOCIATES, Xxxxx & Xxxxxxx LLP, special United States counsel to the Depositor for certain Selling Shareholders including Grand Crossing Trust and BMW Financial ServicesAcorn Composite Corporation, addressed to the Underwriters, dated in the Closing Date and in form and substance satisfactory to the Representative and Representatives as set forth as Exhibit I attached hereto.
(k) The Representatives shall have received from Shearman & Sterling LLP, United States counsel to for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to (imatters as the Representatives may require, and the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely as to all matters governed by Cayman Islands law upon the opinion of Xxxxxxx Xxxx & Xxxxxxx referred to in Section 8(e) certain true sale above, all matters governed by BVI law upon the opinion of Harneys referred to in Section 8(f) above, and nonconsolidation bankruptcy all matters governed by PRC law upon the opinion of Haiwen & Partners in Section 8(g) above and (iithe opinion of Commerce & Finance Law Offices referred to in Section 8(j) certain security interest mattersbelow.
(l) The Representative Representatives shall have received an opinion of Xxxxxxx and Xxxxxx LLPfrom Commerce & Finance Law Offices, PRC counsel to the Indenture Trustee, addressed to for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to matters as the Closing Date Representatives may require, and satisfactory in form the Selling Shareholders and substance the Company shall have furnished to such counsel such documents as they request for the Representative and counsel purpose of enabling them to the Underwriterspass upon such matters.
(m) On The Representatives shall have received from Xxxxxxxxx Xxxxxxx Xxxx & Xxxxxx LLP, United States counsel for the Depositary, such opinion or opinions, dated such Closing Date, in the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives as set forth as Exhibit J attached hereto.
(n) The Representative Representatives shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the such Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive Officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Financial Officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement or ADS Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the Applicable Time; and, subsequent to the dates of the most recent financial statements in the General Disclosure Package as of the Applicable Time, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), earnings, business, properties or results of operations of the Company and its Group Entities taken as a whole except as set forth in the General Disclosure Package as of the Applicable Time, the Registration Statement, or as described in such certificate.
(o) The Representatives shall have received a certificate, dated such Closing Date, of the Chief Executive Officer, to the effect that: the estimated financial results of the Company for the three months ended March 31, 2007 as set forth under the caption “Recent Developments” in the Registration Statement and the General Disclosure Package as of the Applicable Time is: (i) true and correct in all material respects; (ii) will not differ in any material respect from the corresponding amounts to be reported by the Company in connection with the announcement of its results for the quarter ended March 31, 2007 and filed with the SEC on Form 6-K (assuming consummation of the offering); and (iii) has been derived from the Company’s accounting records and prepared in conformity with U.S. generally accepted accounting principles and on a basis consistent with the Company’s audited consolidated financial statements included in the Registration Statement and the General Disclosure Package as of the Applicable Time and include all adjustments, consisting only of normal recurring adjustments (other than adjustments based upon the finalization of the Company’s quarterly closing, review and reporting processes), necessary in the opinion of the management of the Company to provide a fair presentation of the results for the three months ended March 31, 2007.
(p) The Representatives shall have received a certificate, dated such Closing Date, of the Selling Shareholders, to the effect that: the representations and warranties of the Selling Shareholders in this Agreement are true and correct; the Selling Shareholders have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date.
(q) The Representatives shall have received a letter, dated the Applicable Time and such Closing Date, of Deloitte Touche Tohmatsu CPA Ltd. which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(r) On or prior to the date of this Agreement, the Representatives shall have received the Lock-Up Agreements, in the form as set forth as Exhibit A attached hereto, from the Selling Shareholders, the Company’s directors and executive officers, the Company’s other existing shareholders named in Schedule C hereto and Xxxxxxx.xxx Corporation.
(s) No Issuer Free Writing Prospectus, Prospectus or amendment or supplement to the Registration Statement, the ADS Registration Statement or the Prospectus, to each of which the Representative object in writing, shall have been filed.
(t) Each Class of Notes The Offered ADSs shall have been rated duly included for listing on the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing ProspectusNYSE subject only to notice of issuance.
(u) The Representative Company and the Depositary shall have receivedexecuted and delivered the Deposit Agreement, from each of BMW Financial Servicesin form and substance satisfactory to the Underwriters, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which Deposit Agreement shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby in full force and in the Transaction Documents and (iv) designation of incumbency of each such entityeffect.
(v) All requirements The Depositary shall have delivered to the Company at such Closing Date certificates satisfactory to the Underwriters evidencing the deposit with the Depositary or its nominee of Rules 15Ga-2 the Ordinary Shares being so deposited against issuance of ADRs evidencing the Offered ADSs to be delivered by the Company and 17g-10 under the Exchange Act have been Selling Shareholders at such Closing Date, and will be timely complied withthe execution, countersignature (if applicable), issuance and delivery of ADRs evidencing such Offered ADSs pursuant to the Deposit Agreement.
(w) The Depositor shall provide On or cause to be provided prior to the Representative First Closing Date, the Representatives shall have received from each Selling Shareholder a properly completed and executed United States Treasury Department Form W-8BEN (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(x) On or prior to the Closing Date, the NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(y) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses to the Underwriters. The Selling Shareholders and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters Representatives may reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise. The several obligations of the Underwriters to purchase Optional ADSs hereunder are subject to the delivery to the Representatives on the applicable Closing Date of such documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional ADSs to be sold on such Closing Date and other matters related to the issuance of such Optional ADSs. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement and the obligations of the several Underwriters to purchase the Offered ADSs may be terminated by the Representatives by notice to the Company and the Selling Shareholders at any time at or prior to such Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5(v), 6(a) and Section 13 and except that Sections 1, 9 and 13 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Securities on the Closing Date will be subject to the accuracy when made and on the Closing Date of the representations and warranties made on the part of the Company and Hovnanian herein, to the accuracy of the statements of the Company, Hovnanian and Guarantor officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company, Hovnanian and BMW Financial Services each Guarantor in all material respects of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representatives shall have received, on the date hereof and on the Closing Date, each of the Transaction Documentsa letter dated such date, the SUBI Certificatein form and substance satisfactory to you, the Notes and the Certificates shall have been duly authorizedfrom Deloitte & Touche LLP, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, an independent registered public accounting firm with respect to the Notes Company, containing the information and Certificates, a conformed copy thereof. The Transaction Documentsstatements of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, the SUBI Certificate, the Notes Prospectus and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeTime of Sale Information.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior to the Closing Date, no . No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the Depositor Company, Hovnanian or BMW Financial Servicesany Underwriter, shall be contemplated by the Commission.
(dc) On Subsequent to the Closing Dateexecution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise that, in the reasonable judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities of the Company or Hovnanian by any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of Hovnanian or the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company or Hovnanian has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Hovnanian or the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States if, in the reasonable judgment of the Representatives, the Representative shall have received effect of such disruption makes it impractical or inadvisable to proceed with completion of the favorable opinion public offering or opinions the sale of in-house counsel and payment for the Securities; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the Depositor public offering or the sale of and BMW Financial Services addressed to payment for the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersSecurities.
(ed) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative Representatives shall have received an opinion of Xxxxxxx Xxxxxxxxx, Esq., Vice President and Xxxxxx Corporate Counsel of the Company, dated the Closing Date, substantially to the effect as set forth in Exhibit A.
(e) The Representatives shall have received an opinion and a negative assurance statement, dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, substantially to the Indenture Trusteeeffect as set forth in Exhibits B-1 and B-2, addressed respectively.
(f) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The Representatives shall have received a certificate, dated the Closing Date and satisfactory signed by J. Xxxxx Xxxxxx, in form his capacity as Executive Vice President and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each Chief Financial Officer of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, Company (i) since confirming the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as matters set forth in or contemplated in the Prospectus (exclusive of any supplement theretoSections 2(hh) and 2(ii), (ii) confirming that all the representations and warranties of the Depositor, BMW Financial Services Company and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, Hovnanian contained herein are true and correctcorrect on the Closing Date with the same force and effect as if made on and as of the Closing Date, (iii) that, in all material respects, the Depositor, BMW Financial Services Company and the UTI Beneficiary, as the case may be, has Hovnanian have complied with all of the agreements and satisfied all of the conditions on its part herein contained and required to be performed complied with or satisfied at by the Company and Hovnanian on or prior to the Closing Date and Date, (iv) (in the case of the Depositor and BMW Financial Services only) that to his knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or are pending or are contemplated by the CommissionCommission and (v) since the date of the most recent financial statements incorporated by reference in the Time of Sale Information and the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Time of Sale Information and the Prospectus (exclusive of any supplement thereto).
(th) Each Class The Representatives shall have received lockup letters in the form of Exhibit D hereto from each of the executive officers and directors of the Company.
(i) The Company, Hovnanian, the Units Agent and the Trustees shall have executed and delivered the Units Agreement and the Underwriters shall have received copies, conformed as executed, thereof.
(j) Hovnanian, the Guarantors and the applicable Trustee shall have executed and delivered each of the Supplemental Indentures and the Underwriters shall have received copies, conformed as executed, thereof.
(k) An application for listing the Underlying Common Stock shall have been submitted to the New York Stock Exchange and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) The Representatives shall have received a certificate of the chief financial or chief accounting officer of the Company, dated as of the date hereof and as of the Closing Date, substantially in the form of Exhibit E hereto.
(m) The indenture governing the Existing First Lien Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectusdischarged.
(un) The Representative offering of Secured Notes, as described in the Time of Sale Information, shall have received, from each of BMW Financial Services, been consummated. The Company will furnish the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each Representatives with such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm ADSs on the First Closing Date and the Option Securities to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein (as though made hereinon such Closing Date), to the accuracy of the statements of officers of Company officers, each Selling Shareholder, as the Depositor case maybe, and BMW Financial Services the Depositary made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Shareholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Representatives shall have received letters, dated, respectively, the date hereof and at each Closing, of Deloitte Touche Tohmatsu CPA Ltd., confirming that they are registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form attached as Annex C hereto; provided in any letter dated a Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, specified date referred to in Annex C shall be in full force and effect and a date no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect more than three days prior to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativesuch Closing Date.
(b) Both at or before If the date hereofEffective Time of the Additional Registration Statement, and on or before the Closing Dateif any, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or, if earlier, the Preliminary time the Final Prospectus is finalized and covering procedures performed as of the date of the Preliminary Prospectusdistributed to any Underwriter, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report occurred at or prior such later date as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Representatives. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on the date of this Agreement or prior such later date as shall have been consented to by the Representatives. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects or of the Company, the Subsidiaries and the Affiliated Entity taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) a change in U.S., the PRC, the British Virgin Islands, the United Kingdom or international financial, political or economic conditions or currency exchange rates, exchange controls, or taxation, including any transfer taxes, duties, or withholding obligations the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the London Stock Exchange (including the Alternative Investment Market of the London Stock Exchange), or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal, New York, PRC, the British Virgin Islands or the United Kingdom authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or the United Kingdom; (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the British Virgin Islands, the United Kingdom or the PRC, any declaration of war by the U.S. Congress, the PRC, the United Kingdom or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered ADSs or to enforce contracts for the sale of the Offered ADSs.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of Xxxxxx & Xxxxxxx LLP, United States counsel for the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services Company, addressed to the Underwriters, dated substantially in the Closing Date and form set forth in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex D hereto.
(e) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxBoss & Young, Xxxxx & Xxxxxxx LLP, PRC counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date and addressing corporate, enforceability and securities matters satisfactory form set forth in form and substance to the Representative and counsel to the UnderwritersAnnex E hereto.
(f) The Representative Representatives shall have received an opinion or opinions dated such Closing Date, of XxxxxxXxxxxx Westwood & Reigels, Xxxxx & Bockius LLP, British Virgin Islands counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actform set forth in Annex F hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxxan opinion dated such Closing Date, Xxxxx & Bockius LLPof Pinsent Masons, United Kingdom counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated substantially in the Closing Date satisfactory form set forth in form and substance to the Representative and counsel to the UnderwritersAnnex G hereto.
(h) On the Closing Date, the Representative The Representatives shall have received the favorable opinion dated such Closing date, of Xxxxxxxx, Xxxxxx & FingerXxxxxxx LLP, P.A., special Delaware United States counsel for the Depositor and BMW Financial ServicesSelling Shareholders, addressed to the Underwriters, dated substantially in the Closing Date and form set forth in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex H hereto.
(i) On the Closing Date, the Representative The Representatives shall have received the favorable an opinion dated such Closing date, of Xxxxxx Westwood & Xxxxxxxxx LLPReigels, special Indiana British Virgin Islands counsel to the UTI Beneficiaryfor certain Selling Shareholders, addressed to the Underwriters, dated in the Closing Date and in form and substance reasonably satisfactory to the Representative Representations and counsel to the Underwritersas set forth in Annex I hereto.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, The Underwriters shall have delivered received an opinion addressed to the Underwritersopinion, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the such Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxxfrom Xxxxx, Xxxxx Xxxxxx & Xxxxxxx Xxxxxx LLP, special counsel to for the Depositor and BMW Financial ServicesDepositary, addressed to the Underwriters, substantially in the form set forth in Annex J hereto.
(k) The Representatives shall have received from Shearman & Sterling LLP, United States counsel for the Underwriters, such opinion or opinions, dated the such Closing Date and in form and substance satisfactory to the Representative and counsel Date, addressed to the Underwriters, with respect to (i) certain true sale such matters as the Representatives may require, and nonconsolidation bankruptcy the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely as to the incorporation of the Company and all other matters governed by British Virgin Islands laws upon the opinion of Xxxxxx Westwood & Riegels and (ii) certain security interest mattersas to all matters governed by the laws of the PRC upon the opinions of Boss & Young referred to above and the opinions of Haiwen & Partners referred to below.
(l) The Representative Representatives shall have received an opinion of Xxxxxxx and Xxxxxx LLPfrom Haiwen & Partners, PRC counsel to the Indenture Trustee, addressed to the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Closing Date Representatives may require, and satisfactory in form the Selling Shareholders and substance the Company shall have furnished to such counsel such documents as they may reasonably request for the Representative and counsel purpose of enabling them to the Underwriterspass upon such matters.
(m) On The Depositary shall have furnished or caused to be furnished to the Closing DateUnderwriters a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADRs evidencing the ADSs, the Representative shall have received execution, issuance, countersignature and delivery of the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel ADRs evidencing the ADSs pursuant to the Vehicle Trustee, addressed to Deposit Agreement and such other matters related thereto as the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the UnderwritersRepresentatives may reasonably request.
(n) The Representative Company and the Depositary shall have received an opinion executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to Shares and the Underwriters, dated issuance of the Closing Date and satisfactory ADSs in form and substance to accordance with the Representative and counsel to the UnderwritersDeposit Agreement.
(o) The Representative Representatives shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the such Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Financial Officer of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing Company in which such officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission, the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company, the Subsidiaries and the Affiliated Entity taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(p) The Representatives shall have received letters, dated, respectively, the date hereof and at each Closing, of the Chief Financial Officer of the Company substantially in the form attached as Annex K hereto; provided in any letter dated a Closing Date, the specified date referred to in Annex K shall be a date no more than three days prior to such Closing Date.
(q) On or prior to the date of this Agreement, the Representatives shall have received lock-up letters from each of the directors and executive officers of the Company and the existing beneficial owners of the Shares (other than the Shares placed in connection with the Company’s admission to AIM in August 2006), in each case substantially in the form attached hereto as Annex B-II.
(r) The Representatives shall have received a certificate, dated such Closing Date, of an authorized representative of each Selling Shareholder in which such authorized representative shall state that: the representations and warranties of such Selling Shareholder in this Agreement are true and correct; and the Selling Shareholders have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(s) On the date hereof, the Selling Shareholder shall have furnished for review by the Representatives executed copies of the Power of Attorney and Custody Agreement.
(t) Each Class of Notes On or prior to the First Closing Date, the Representatives shall have been rated received a letter of the rating Custodian stating that they will deliver to each Selling Shareholder a United States Treasury Department Form 1099 (or other applicable form or statement specified in the Ratings Free Writing Prospectus by the hired NRSROs specified United States Treasury Department regulations in the Ratings Free Writing Prospectuslieu thereof) on before January 31, 2009.
(u) The Representative shall have receivedTo avoid a 28% backup withholding tax each Selling Shareholder will deliver to the Representatives a properly completed and executed United States Treasury Department Form W-9, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed W-8BEN (or other applicable form or statement specified by a secretary or assistant secretary Treasury Department regulations in lieu thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityestablish an exemption from backup withholding).
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act The ADSs shall have been listed and will be timely complied withadmitted and authorized for trading on The New York Stock Exchange.
(w) The Depositor Offered Shares represented by the Offered ADSs shall provide have been approved by AIM for admission for trading on AIM.
(x) On or cause to be provided prior to the Representative First Closing Date, the Offered ADSs shall be eligible for clearance and settlement through the facilities of DTC. The Selling Shareholders and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Option Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Company with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Xxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPX. Xxxxx III, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC (who in such capacity provides legal services to the Indenture TrusteeCompany), addressed the service company subsidiary of Duke Energy Corporation, or other appropriate counsel reasonably satisfactory to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
Representatives (m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and which may include Duke Energy Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the Underwriters may rely on each such opinion law of the State of North Carolina, with power and authority (corporate and other) to own its properties and conduct its business as described in the same extent as though such opinion was addressed Pricing Disclosure Package and the Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Company is duly qualified to do business in each jurisdiction in which the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, Company.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCompany.
(wvi) The Depositor issue and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles or Bylaws of the Company, the North Carolina Business Corporation Act or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company, any of its properties or any of its subsidiaries, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company is a party or by which it or its property is bound or to which any of its property or assets is subject or any instrument filed or incorporated by reference as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2018 or any subsequent Quarterly Report on Form 10-Q or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2018 or identified in Annex A to this Agreement, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes.
(vii) The North Carolina Utilities Commission has issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to this Agreement.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and qualified under the 1939 Act, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms.
(ix) The Notes have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(x) No consent, approval, authorization, order, registration or qualification of or with any federal or North Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and (ix) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that such counsel does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws. Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, letters officers of the Company and documents as the Representative or other sources believed by such counsel to be reliable.
(f) You shall have received an opinion of Hunton Xxxxxxx Xxxxx LLP, counsel to the Underwriters Company, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(iii) The Notes have been duly authorized and executed by the Company, and, when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
(iv) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(vi) No Governmental Approval (as defined below), which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby; except for such consents, approvals, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(vii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(viii) The execution and delivery by the Company of this Agreement and the Indenture and the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Notes, will not violate or conflict with, or result in any contravention of, any Applicable Laws (as defined below) of the States of North Carolina and New York.
(ix) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting (Conflicts of Interest),” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.
Appears in 1 contract
Samples: Underwriting Agreement (Piedmont Natural Gas Co Inc)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be Firm Shares on the Closing Date and the Option Shares on any Option Closing Date are subject to the accuracy fulfillment of each of the representations and warranties made herein, following conditions on or prior to the accuracy of the statements of officers of the Depositor Closing Date and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedenteach Option Closing Date:
(a) On All the representations and warranties of the Company and the Selling Shareholder contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable. The Company and the Selling Shareholder shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all respects with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both If the Registration Statement is not effective at or before the date hereof, time of the execution and on or before the Closing Datedelivery of this Agreement, the Representative Registration Statement shall have received three lettersbecome effective (or, one relating to the 2021if a post-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication effective amendment is required to be filed with pursuant to Rule 430A under the Commission Act, such post-effective amendment shall have become effective) not later than 9:30 A.M., New York City time, on the date of this Agreement or such later time as you may approve in writing or, if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been filed with as required hereby, if necessary; and at the Commission in accordance with the Rules Closing Date and Regulations and Section 7(h) hereof; on or prior to the each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before or, to the best knowledge of the Depositor Underwriters, the Company or BMW Financial Servicesthe Selling Shareholder, shall be contemplated threatened by the Commission; every request for additional information on the part of the Commission shall have been complied with to the Underwriters' satisfaction; no stop order suspending the sale of the Shares in any jurisdiction referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) The Shares shall have been qualified for sale under the Blue Sky laws of such states as shall have been specified by the Representatives.
(d) On The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment, and no Underwriter shall have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of material fact, or omits to state a fact that in your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any material change, or any material development involving a prospective change, in or affecting particularly the business or properties of the Company, whether or not arising in the ordinary course of business, that, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby.
(f) You shall have received the Lock-up Agreements specified in Section 5(p) of this Agreement.
(g) You shall have received an opinion (satisfactory to you and your counsel) dated the Closing Date or the Option Closing Date, as the case may be, of Xxxx & Xxxxx Professional Corporation, counsel for the Company and the Selling Shareholder, substantially to the effect set forth on Exhibit A hereto and incorporated herein by this reference.
(h) You shall have received an opinion (satisfactory to you and your counsel) dated the Closing Date of Xxxx & Xxxxx Professional Corporation counsel for the Company substantially to the effect set forth on Exhibit B hereto and incorporated herein by this reference.
(i) You shall have received on the Closing Date an opinion of Xxxxx Xxxxx & Xxxxxxx, counsel to the Company and XXXXX dated the Closing Date, substantially to the Representative effect set forth on Exhibit C hereto and incorporated herein by this reference.
(j) You shall have received on the favorable opinion or opinions of in-house counsel Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, a letter from Xxxxx & Young LLP addressed to the Depositor Company and BMW Financial Services addressed to the Underwriters, dated the Closing Date or such later date on which Option Shares are to be purchased, as the case may be, confirming that they are independent certified public accountants with respect to the Company within the meaning of the Act and the applicable published Rules and Regulations and based upon the procedures described in such letter delivered to you concurrently with the execution of this Agreement (herein called the "Original Letter"), but carried out to a date not more than five (5) business days prior to the Closing Date or such later date on which Option Shares are to be purchased, as the case may be, (i) confirming, to the extent true, that the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later date on which Option Shares are to be purchased, as the case may be, and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter which are necessary to reflect any changes in the facts described in the Original Letter since the date of such letter, or to reflect the availability of more recent financial statements, data or information. The letter shall not disclose any change in the condition (financial or otherwise), earnings, operations, business or business prospects of the Company and its subsidiaries considered as one enterprise from that set forth in the Registration Statement or Prospectus, which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Prospectus. The Original Letter from Xxxxx & Young LLP shall be addressed to or for the use of the Underwriters in form and substance satisfactory to the Representative Underwriters and counsel shall (i) represent, to the Underwriters.
extent true, that they are independent certified public accountants with respect to the Company within the meaning of the Act and the applicable published Rules and Regulations, (eii) The Representative set forth their opinion with respect to their examination of the balance sheets of the Company as of December 31, 1995 and 1996 and September 30, 1997, and related statements of operations, shareholders' equity, and cash flows for the year ended December 31, 1995, the ten months ended October 31, 1996, the two months ended December 31, 1996 and the nine months ended September 30, 1997, (iii) state that Xxxxx & Young LLP has performed the procedure set out in Statement on Auditing Standards No. 71 ("SAS 71") for a review of financial information at December 31, 1993 and 1994, and (iv) address other matters agreed upon by Xxxxx & Young LLP and you. In addition, you shall have received an opinion or opinions of Xxxxxx, Xxxxx from [Ernst & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, Young LLP a letter addressed to the UnderwritersCompany and made available to you for the use of the Underwriters stating that their review of the Company's system of internal accounting controls, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to extent they deemed necessary in establishing the Underwriters.
(f) The Representative shall have received an opinion or opinions scope of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none their examination of the DepositorCompany's consolidated financial statements as of September 30, the Trust or the Vehicle Trust is required 1997 did not disclose any weaknesses in internal controls that they considered to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwritersbe material weaknesses.
(k) On the Closing Date, the Representative You shall have received from the favorable opinion or opinions of XxxxxxCompany a certificate, signed by Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and FingerXxxxx Xxxx, P.A.in their capacities as Chief Executive Officer and Chief Financial Officer of the Company, counsel to the Vehicle Trusteerespectively, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date or Option Closing Date, with respect as applicable to certain securities law issues and other related matters as the Representative may reasonably requesteffect that:
(i) such officer does not know of any Proceedings instituted, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions threatened or negative assurance letters contemplated against the Company of a character required to be based upon disclosed in the Prospectus that are not so disclosed; such matters.officer does not know of any material contract required to be filed as an exhibit to the Registration Statement which is not so filed;
(rii) The Representative shall have received copies such officer has carefully examined the Registration Statement and the Prospectus and all amendments or supplements thereto and, in such officer's opinion, such Registration Statement or such amendment as of each opinion its effective date and as of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to and the effect that the Underwriters may rely on each Prospectus or such opinion to the same extent as though such opinion was addressed to each supplement as of its date.
(s) Each date and as of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the effect that statements therein not misleading and, in such officer's opinion, since the signer effective date of such certificate has reviewed the Registration Statement, no event has occurred or information become known that should have been set forth in an amendment to the Prospectus, any supplements Registration Statement or a supplement to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there which has not been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as so set forth in such amendment or contemplated in the Prospectus supplement;
(exclusive of any supplement thereto), (iiiii) the representations and warranties of the Depositor, BMW Financial Services Company set forth in Section 6(a) of this Agreement are true and correct as of the UTI Beneficiarydate of this Agreement and as of the Closing Date or the Option Closing Date, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date and Date; and
(iv) (in the case Commission has not issued an order preventing or suspending the use of the Depositor and BMW Financial Services only) that Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and issued; and, to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or are contemplated under the Act; and
(v) each of the Company and HPAUK has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to respective closing dates of the Loan Documents and the Transaction Documents (except in the case of the Transaction Documents of the payment of the purchase price for the BA Assets to British Airways);
(vi) no facts have come to such officer's attention that lead such officer to believe that the payment of the purchase price for the BA Assets and consummation of the transactions contemplated by the Commission.
(t) Each Class Transaction Documents may not occur immediately following the Closing Date. The delivery of Notes the certificate provided for in this subparagraph shall have been rated be and constitute a representation and warranty of the rating specified Company as to the facts required in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, immediately foregoing clauses (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entitythis subparagraph to be set forth in said certificate.
(vl) All requirements You shall be satisfied that, and you shall have received a certificate, dated the Closing Date, or any later date on which Option Shares are to be purchased, as the case may be, from the Selling Shareholder or the Attorneys-in Fact for the Selling Shareholder to the effect that, as of Rules 15Ga-2 the Closing Date, or any later date on which Option Shares are to be purchased, as the case may be, they have not been informed that:
(i) The representations and 17g-10 under warranties made by such Selling Shareholder herein are not true or correct in any material respect on the Exchange Act have been and will Closing Date or on any later date on which Option Shares are to be timely purchased, as the case may be; or
(ii) The Selling Shareholder has not complied withwith any obligation or satisfied any condition which is required to be performed or satisfied on the part of such Selling Shareholder at or prior to the Closing Date or any later date on which Option Shares are to be purchased, as the case may be.
(wm) The Depositor You and Freshman, Marantz, Xxxxxxxx, Xxxxxx & Xxxxx, a law corporation, counsel for the Underwriters, shall provide have received on or cause to be provided before the Closing Date or the Option Closing Date, as the case may be, such further documents, opinions, certificates and schedules or instruments relating to the Representative conformed copies business, corporate, legal and financial affairs of such opinions, certificates, letters the Company as you and documents as they shall have reasonably requested from the Representative or counsel to the Underwriters may reasonably requestCompany.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Underwritten Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Seller and TMCC herein, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services TMCC made in any officers’ certificates pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services TMCC of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On (i) the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes Representatives and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy thereof orletter, dated the date of delivery thereof, of [PriceWaterhouseCoopers LLP] confirming that they are independent public accountants with respect to the Notes Seller and Certificates, a conformed copy thereof. The Transaction Documents, TMCC within the SUBI Certificate, meaning of the Notes Act and the Certificates shall be substantially Rules and Regulations and with respect to certain information contained in the forms heretofore provided to the Representative.
(b) Both at or before the date hereofRegistration Statement, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Designated Static Pool Information and substantially in the form of the drafts draft to which the Representative has Representatives previously have agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representatives and counsel for the Underwriters and (ii) the Closing Date, the Representatives and the Seller shall have received (x) a letter, dated as of the Closing Date, from [PriceWaterhouseCoopers LLP], updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Representative Representatives and counsel for the Representatives and (y) a letter, dated as of the Closing Date, from [PriceWaterhouseCoopers LLP] relating to certain agreed-upon procedures regarding data integrity in form and substance reasonably satisfactory to the Underwriters; provided, that Representatives and counsel for the Underwriters shall have received Representatives (which letter may be included as part of the Accountant’s Due Diligence Report at or prior letter referred to the deadline set forth in Section 2(a)(xxxvii)(Bclause (x)).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 7(h) hereofRegulations; on or prior to and, before the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller or BMW Financial Servicesthe Underwriters, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in or affecting the condition, financial or otherwise, earnings, business or operations of the Seller, TMCC, the Titling Trust or the Trust which, in the reasonable judgment of the Representatives (after consultation with the Underwriters), materially impairs the investment quality of the Underwritten Notes, or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Underwritten Notes; (ii) any downgrading in the rating of any debt securities of TMCC or any of its direct or indirect subsidiaries by any Hired NRSRO, or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of TMCC on any exchange or in the over-the-counter market, (v) any banking moratorium declared by federal, California or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representatives (after consultation with the Underwriters), the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Underwritten Notes.
(d) On The Representatives shall have received:
(1) the favorable opinion or opinions, dated the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel Bxxxxxx MxXxxxxxx, LLP, with respect to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing general corporate, enforceability and securities matters satisfactory law matters, in form and substance scope reasonably satisfactory to the Representative and counsel to the Underwriters.Representatives;
(f2) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx Bxxxxxx MxXxxxxxx LLP, special counsel to the Depositor Seller, TMCC and BMW Financial Servicesthe Trust, addressed with respect to the UnderwritersRegistration Statement, dated the Closing Date most recent Preliminary Prospectus delivered prior to the Time of Sale and the Prospectus, in form and substance scope reasonably satisfactory to the Representative and Representatives;
(3) a negative assurance letter of [_______], counsel to the Underwriters, with respect to (i) certain true sale the Registration Statement, the most recent Preliminary Prospectus delivered prior to the Time of Sale and nonconsolidation bankruptcy matters the Prospectus, in form and (ii) certain security interest matters.scope reasonably satisfactory to the Representatives;
(l4) The Representative shall have received an opinion the favorable opinion, dated the Closing Date, of Xxxxxxx Kxxxxxxxx X. Xxxxxx, Esq., General Counsel of TMCC and Xxxxxx LLPcounsel to the Seller, in form and scope reasonably satisfactory to the Representatives;
(5) the favorable opinion, dated the Closing Date, of [_______], counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance scope reasonably satisfactory to the Representative Representatives and counsel for the Underwriters;
(6) The favorable opinion of Bxxxxxx MxXxxxxxx LLP, special counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, in form and scope reasonably satisfactory to the effect that Representatives and counsel for the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.Underwriters, regarding certain security interest matters;
(s7) Each The favorable opinion of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicableBxxxxxx MxXxxxxxx LLP, dated the Closing Date, in form and scope reasonably satisfactory to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements Representatives and counsel to the Prospectus Underwriters with respect to certain bankruptcy matters;
(8) The favorable opinions of Rxxxxxxx, Xxxxxx & Fxxxxx, P.A. as special Delaware counsel for the Trust [, and] the Titling Trust [and the Delaware Trustee], dated the Closing Date, in form and scope reasonably satisfactory to the Representatives and counsel for the Representatives;
(9) The favorable opinion of Rxxxxxxx, Xxxxxx & Fxxxxx, P.A., as special counsel for the Owner Trustee, dated the Closing Date, in form and scope reasonably satisfactory to the Representatives and counsel for the Representatives;
(10) the favorable opinion, dated the Closing Date, of [_______], counsel to the Titling Trustee, in form and scope reasonably satisfactory to the Representatives and counsel for the Underwriters. The opinions and negative assurance letters described in this Agreement Section 6(d) may contain such assumptions, qualifications and that limitations as are customary in opinions or letters of this type and are reasonably acceptable to counsel to the Representatives.
(e) The Representatives shall have received a certificate, dated the Closing Date, signed by the President or any Vice President and a principal financial or accounting officer of (i) the Seller in which such officers shall state that, to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (iiA) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iiiB) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and in all material respects, (ivC) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission, (D) the Additional Registration Statement, if any, satisfying the requirements of Rule 462(b)(1) and Rule 462(b)(3) was filed in accordance with Rule 462(b) (including payment of the applicable filing fee in accordance with Rule 111(a) or Rule 111(b) under the Act) prior to the time the Prospectus was printed or distributed to the Underwriter and (E) subsequent to the date of this Agreement, there has been no material adverse change in or affecting the condition, financial or otherwise, earnings, business or operations of the Seller except as set forth or contemplated in the Prospectus and (ii) TMCC in which such officers shall state that, to the best of their knowledge after reasonable investigation, (A) the representations and warranties of TMCC in this Agreement are true and correct, (B) TMCC has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder in all material respects and (C) subsequent to the date of this Agreement there has been no material adverse change in or affecting the condition, financial or otherwise, earnings, business or operations of TMCC which would materially and adversely affect the performance by TMCC of its obligations under this Agreement or any of the Basic Documents.
(tf) Each Class of On the Closing Date, the Underwritten Notes shall have been rated received the rating specified ratings indicated in the Ratings Free Writing Prospectus by from the hired NRSROs specified in the Ratings Free Writing Prospectusnationally recognized statistical rating organizations named therein.
(ug) The Representative Representatives shall have receivedreceived a certificate, from each dated the Closing Date, signed by an authorized officer or any Vice President of BMW Financial Servicesthe Indenture Trustee, in which such officer shall state that the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and information contained in the Transaction Documents Form T-1 for the Indenture Trustee is true and (iv) designation accurate as of incumbency of each such entityits filing with the Commission.
(vh) All requirements of Rules 15Ga-2 On the Closing Date, the Representatives and 17g-10 under counsel for the Exchange Act Underwriters shall have been furnished with such documents and will opinions as they reasonably may require for the purpose of enabling them to pass upon the issuance and sale of the Underwritten Notes as herein contemplated and related proceedings or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Seller and TMCC in connection with the issuance and sale of the Underwritten Notes as herein contemplated shall be timely complied with.
(w) The Depositor shall provide or cause to be provided in form and substance reasonably satisfactory to the Representative conformed copies of such opinions, certificates, letters Representatives and documents as counsel for the Representative or counsel to the Underwriters may reasonably requestUnderwriters.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes Firm ADSs on the First Closing Date and the Optional ADSs on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein (as though made hereinon such Closing Date), to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On The Lead Manager shall have received letters, dated, respectively, the date hereof and at each Closing Date, each of Deloitte Touche Tohmatsu Certified Public Accountants LLP, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Transaction DocumentsSecurities Laws and in form and substance satisfactory to the Lead Manager, containing statements and information of the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be type ordinarily included in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, accountants’ “comfort letters” to underwriters with respect to the Notes financial statements and Certificates, a conformed copy thereof. The Transaction Documentscertain financial information contained in the Registration Statement, the SUBI Certificate, the Notes Time of Sale Prospectus and the Certificates Final Prospectus; provided that the letter delivered on each Closing Date shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021use a “cut-2 Leases dated as of a date at least five off date” no earlier than four business days prior to the date hereofthe letter is dated.
(b) If the Effective Time of the Additional Registration Statement, one relating if any, is not prior to the Preliminary Prospectusexecution and delivery of this Agreement, dated such Effective Time shall have occurred not later than 10:00 P.M., New York time, on or about the date of this Agreement or, if earlier, the Preliminary time the Final Prospectus is finalized and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed distributed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters or shall have received the Accountant’s Due Diligence Report occurred at or prior such later date as shall have been consented to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission Lead Manager. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on the date of this Agreement or prior such later date as shall have been consented to by the Lead Manager. Prior to each Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Underwriters, shall be have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects or of the Company and the Subsidiaries taken as a whole which, in the judgment of the Lead Manager, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any loss or interference with the Company’s or any Subsidiary’s business from fire, explosion, flood or other calamity, whether or not covered by insurance, or any change in the share capital or short-term debt or long term debt of the Company or any of the Subsidiaries, the effect of which, in the judgment of the Lead Manager, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (iii) a change in U.S., the PRC, the Cayman Islands or international financial, political or economic conditions or currency exchange rates, exchange controls the effect of which is such as to make it, in the judgment of the Lead Manager, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NYSE or the Nasdaq Stock Market, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. federal, New York, PRC or the Cayman Islands authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States, the PRC or the Cayman Islands; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the Cayman Islands or the PRC, any declaration of war by the U.S. Congress, the PRC or any other national or international calamity or emergency if, in the judgment of the Lead Manager, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered ADSs or to enforce contracts for the sale of the Offered ADSs.
(d) On the The Lead Manager shall have received opinions and a negative assurance letter, dated each Closing Date, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, United States counsel for the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services Company, addressed to the Underwriters, dated the Closing Date and Lead Manager in form and substance satisfactory to the Representative and counsel to the UnderwritersLead Manager.
(e) The Representative Lead Manager shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the each Closing Date, the Representative shall have received the favorable opinion of XxxxxxxxDaHui Lawyers, Xxxxxx & Finger, P.A., special Delaware PRC counsel for the Depositor and BMW Financial ServicesCompany, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersLead Manager.
(if) On the The Lead Manager shall have received an opinion dated each Closing Date, of Txxxxxx Txxxx Xxxxxxx, Cayman Islands counsel for the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI BeneficiaryCompany, addressed to the Underwriters, dated the Closing Date and Lead Manager in form and substance satisfactory to the Representative and counsel to the UnderwritersLead Manager.
(jg) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, The Lead Manager shall have delivered received an opinion addressed to the Underwritersopinion, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the each Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxxfrom Zxxxxxx, Xxxxx Zxxxxxx & Xxxxxxx Associates LLP, special counsel to for the Depositor and BMW Financial ServicesDepositary, addressed to the Underwriters, dated the Closing Date and Lead Manager in form and substance satisfactory to the Representative Lead Manager.
(h) The Lead Manager shall have received from Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, United States counsel for the Underwriters, such opinion dated each Closing Date and negative assurance letter dated the First Closing Date, addressed to the Lead Manager, with respect to such matters as the Lead Manager may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion and negative assurance letter, Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP may rely as to the incorporation of the Company and all other matters governed by Cayman Islands laws upon the opinion of Txxxxxx Txxxx Xxxxxxx and as to all matters governed by the laws of the PRC upon the opinions of Jxx Xx Law Offices referred to below.
(i) The Lead Manager shall have received from Jxx Xx Law Offices, PRC counsel to the Underwriters, such opinion, dated each Closing Date, with respect to such matters as the Lead Manager may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ij) certain true sale The Depositary shall have furnished or caused to be furnished to the Lead Manager a certificate satisfactory to the Lead Manager of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADSs, the execution, issuance, countersignature and nonconsolidation bankruptcy delivery of the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Lead Manager may reasonably request.
(k) The Deposit Agreement shall be in full force and (ii) certain security interest matterseffect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Shares and the issuance of the ADSs in accordance with the Deposit Agreement.
(l) The Representative Lead Manager shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the each Closing Date, of the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust Chief Executive Officer and the Vehicle TrustChief Financial Officer of the Company in which such officers shall state that, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the as of such Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge after reasonable investigation, are contemplated by the Commission, the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of any applicable filing fees; and, subsequent to the date of the most recent financial statements in the Time of Sale Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and the Subsidiaries taken as a whole, except as set forth in such certificate.
(tm) Each Class of Notes The Lead Manager shall have been rated received on the rating specified date hereof and on each Closing Date a certificate, dated such date, of the Chief Financial Officer of the Company, with respect to certain operating data contained in the Ratings Free Writing Registration Statement, the Time of Sale Prospectus by and the hired NRSROs specified Final Prospectus in the Ratings Free Writing Prospectusform of Annex B hereto.
(un) The Representative On or prior to the date hereof, the Lead Manager shall have receivedreceived Lock-Up Agreements, substantially in the form of Annex C-I hereto, from each of BMW Financial Servicesthe persons or entities named in Annex C-II hereto.
(o) The Offered ADSs shall have been approved for listing on the NYSE.
(p) On or prior to each Closing Date, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which Offered ADSs shall be attached certified copies eligible for clearance and settlement through the facilities of the: DTC.
(iq) certificate There shall not be any litigation, proceedings, investigations, processes for administrative sanctions or other actions initiated or threatened by any Governmental Agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare non-compliant, unlawful or illegal, under PRC laws, rules and regulations or otherwise, the issuance and sale of formationthe Offered ADSs, (ii) limited liability company agreement the listing and trading of the Offered ADSs on the NYSE or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby by this Agreement and in the Transaction Documents and (iv) designation of incumbency of each such entityDeposit Agreement.
(vr) All No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Registration Statement, the ADS Registration Statement, the Preliminary Prospectus or the Final Prospectus shall have been filed to which the Lead Manager objects in writing.
(s) The ADSs and the Ordinary Shares represented thereby shall be “actively-traded securities” excepted from the requirements of Rules 15Ga-2 and 17g-10 Rule 101 of Regulation M under the Exchange Act have been and by subsection (c)(1) of such rule as of the Closing Date. The Company will be timely complied with.
(w) The Depositor shall provide or cause to be provided to furnish the Representative Lead Manager with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Lead Manager reasonably requests. The Lead Manager may in its sole discretion waive compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Offered Securities will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8) of the Rules and Regulations and in accordance with Section 7(h5(a) hereof); on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, initiated or to the knowledge of the Depositor or BMW Financial Services, shall be contemplated Company threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(b) Xxxxxxxxx & Xxxxxxx, PLLC, counsel to the Company, shall have furnished to the Representatives, a letter addressed to the Underwriters and dated the Closing Date substantially in the form set forth in Exhibit A.
(c) Xxxxxxx Coie LLP, counsel to the Company, shall have furnished to the Representatives, a letter addressed to the Underwriters and dated the Closing Date substantially in the form set forth in Exhibit B.
(d) The Company shall have furnished to the Representatives on the Closing Date a certificate, dated the Closing Date, of its Chief Executive Officer, its President or a Vice President and its Treasurer or an Assistant Treasurer or Controller stating that, to the best of their knowledge after reasonable investigation, the representations and warranties of the Company in Section 2 hereof are true and correct as of the date hereof; the Company has complied with all its agreements contained herein; and the conditions set forth in Sections 6(a),(i) and (j) hereof have been fulfilled.
(e) On the date hereof, the Representatives shall have received a letter from the Company’s independent registered public accounting firm addressed to the Underwriters dated as of the date hereof in form and substance reasonably satisfactory to the Representatives.
(f) On the Closing Date, the Representative Representatives shall have received the favorable opinion or opinions a letter dated as of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and from the Company’s independent registered public accounting firm updating the letter described in subsection (e) in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActRepresentatives.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel Subsequent to the DepositorApplicable Time, BMW Financial Services there shall not have been (i) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the Trustoffering or the sale of and payment for the Offered Securities; (ii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, addressed or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or New York authorities; (v) any material disruption in settlements of securities or clearance services in the United States; or (vi) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency, if, in the judgment of the Representatives the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the Underwriters, dated offering or sale of and payment for the Closing Date satisfactory in form and substance to the Representative and counsel to the UnderwritersOffered Securities.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special as counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to for the Underwriters, shall have furnished to the Representative Representatives on the Closing Date such opinions as the Representatives may reasonably require.
(i) The order of the PUCN referred to in Section 2(m) hereof shall be in full force and effect and no proceedings to suspend the effectiveness of either such order shall be pending or negative assurance letters addressed threatened.
(j) Subsequent to the Underwriters execution of this Underwriting Agreement, the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company shall not have been lowered or any such rating agency shall not have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company.
(k) On the date hereof and dated on the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall have been furnished with such documents and opinions as such counsel may reasonably requestrequire for the purpose of enabling such counsel to pass upon the issuance and sale of the Offered Securities as herein contemplated, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Offered Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and to counsel to the Underwriters.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Optional Shares to be purchased on each Optional Closing Date are subject to the accuracy of the representations and warranties made hereinon the part of the Company herein as of such Closing Date, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Underwriters shall have been duly authorizedreceived, executed and delivered by on the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificatesdate hereof, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before comfort letter dated as of the date hereof, and on or before the each Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases a comfort letter dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountantssuch Closing Date, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative Underwriters, from Ernst & Young LLP confirming that they are independent registered public accountants within the meaning of the Act and counsel the related published Rules and Regulations, and containing such other statements and information as are ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Underwriters; providedfinancial statements and certain financial and statistical information contained in or incorporated by reference in the Registration Statement, that the Underwriters shall have received General Disclosure Package and the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)Prospectus.
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; on or prior of this Underwriting Agreement. Prior to the any Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Underwriters, shall be contemplated by the Commission.
(dc) On Between the time of execution of this Underwriting Agreement and any Closing Date, the Representative (i) no change, development or event shall have received the favorable opinion occurred or opinions of in-house counsel become known to the Depositor Company, that would be reasonably expected to result in a Material Adverse Effect (other than as specifically described in the General Disclosure Package) and BMW Financial Services addressed (ii) no transaction which is material to the UnderwritersCompany shall have been entered into by the Company, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersexcept as required or permitted by this Underwriting Agreement.
(ed) The Representative Underwriters shall have received received, on each Closing Date, an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxx Godward Kronish LLP, counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated the as of such Closing Date and addressing corporate, enforceability and securities matters in a form reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters., which opinion shall be in substantially the form attached hereto as Annex A.
(e) The Underwriters shall have received, on each Closing Date, the opinion of Davidson, Davidson & Xxxxxx, LLC, patent counsel for the Company, dated as of such Closing Date, addressed to the Underwriters and in a form reasonably satisfactory to the Underwriters, which opinion shall be in substantially the form attached hereto as Annex B.
(f) The Representative Underwriters shall have received an received, on each Closing Date, the opinion or opinions of Xxxxxx, Xxxxx Xxxxxx & Bockius Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated as of such Closing Date, with respect to the Closing Date issuance and addressing the following issues (i) none sale of the DepositorOffered Securities by the Company and other related matters as the Underwriters may require, and the Trust or Company shall have furnished to such counsel such documents as they may have requested for the Vehicle Trust is required purpose of enabling them to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actpass upon such matters.
(g) The Representative Underwriters shall have received a negative assurance letter from Xxxxxxreceived, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the on each Closing Date, a certificate of the Representative shall have received Chief Executive Officer and Chief Financial Officer of the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the UnderwritersCompany, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the as of such Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative which such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Dateofficers, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Underwriting Agreement and the Transaction Documents to which it is a party, are true and correct, correct in all material respects (iiiif not qualified by materiality or by a reference to a Material Adverse Effect) and in all respects (if qualified by materiality or by reference to a Material Adverse Effect) as of the Depositor, BMW Financial Services dates on which the representations and warranties were made and as of such Closing Date; the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and, subsequent to the respective date of the Company’s most recent financial statements in the General Disclosure Package, there has been no Material Adverse Effect, nor any change, development or event that would be reasonably likely to result in a Material Adverse Effect, except as set forth in or contemplated by the General Disclosure Package.
(th) Each Class of Notes The Company shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of Underwriters such opinions, certificates, letters further certificates and documents as the Representative or counsel Underwriters shall reasonably request (including certificates of officers of the Company), as to the accuracy and completeness of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to the obligations of the Underwriters hereunder.
(i) The Company shall have obtained and delivered to the Underwriters may reasonably requestthe Lock-up Agreements referred to in Section 1(nn) hereof.
(j) At each Closing Date, the Offered Securities shall be eligible to be traded on the NASDAQ Global Market, subject to official notice of issuance, if applicable.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(ai) On The Representatives shall have received, on each of the date hereof and such Closing Date, each a letter dated the date hereof or such Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be type ordinarily included in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, accountants’ “comfort letters” to underwriters with respect to the Notes financial statements and Certificates, a conformed copy thereof. The Transaction Documents, certain financial information of the SUBI Certificate, Company contained in the Notes Registration Statement and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeProspectus.
(bii) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Initial Registration Statement is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or such later date as shall have been consented to by Citigroup and CSFB. If the Preliminary Prospectus Effective Time of the Additional Registration Statement (if any) is not prior to the execution and covering procedures performed as delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the Preliminary Prospectustime the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been consented to by Citigroup and one relating to CSFB. If the Prospectus, dated on or about the date Effective Time of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(diii) On Subsequent to the Closing Dateexecution and delivery of this Agreement, there shall not have occurred (A) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Underwriters including the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a majority in interest of the Underwriters including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (D) any suspension or limitation of trading in securities generally on the New York Stock Exchange or the Nasdaq National Market or any setting of minimum prices for trading on such exchange; (E) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (F) any banking moratorium declared by U.S. Federal or New York authorities; (G) any major disruption of settlements of securities or clearance services in the United States or (H) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representatives, the Representative shall have received effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the favorable opinion public offering or opinions the sale of in-house counsel to and payment for the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersOffered Securities.
(eiv) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of Xxxxxx, Xxxxx & Xxxxxxx Pillsbury Winthrop LLP, counsel for the Company, to the Depositoreffect that:
(A) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, BMW Financial Services with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(B) The shares of the Company’s Common Stock outstanding prior to the issuance of the Offered Securities have been duly authorized and are validly issued and, to such counsel’s knowledge, fully paid and non-assessable, and the TrustOffered Securities have been duly authorized and, addressed to when issued and delivered in accordance with the Underwritersterms of this Agreement, dated the Closing Date will be validly issued, fully paid and addressing corporatenon-assessable, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed issuance of such Offered Securities will not be subject to the Underwriters, dated the Closing Date and addressing the following issues any preemptive or similar rights pursuant to (i) none the General Corporation Law of the DepositorState of Delaware or (ii) any of the agreements listed in Schedule A of such opinion (the “Agreements”);
(C) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus in all material respects;
(D) The Company is not, immediately prior to the Trust or issuance and sale of the Vehicle Trust is required to register under Offered Securities as contemplated herein, and will not be, immediately after such issuance and sale and the receipt of the consideration therefrom, an “investment company” as defined in the Investment Company Act of 1940;
(E) No consent, approval, authorization or order of, or qualification with, any governmental agency or body under the federal law of the United States of America, the Delaware General Corporation Law or the law of the State of California or the State of New York is required to be obtained or made by the Company for the performance of its obligations under this Agreement, except such as have been obtained and made under the Act and the Securities Exchange Act of 1934 and such as may be required under state securities laws in connection with the offer and sale of the Offered Securities;
(F) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of the federal law of the United States of America, the Delaware General Corporation Law or the law of the State of California or the State of New York or the certificate of incorporation or by-laws of the Company or any of the Agreements, or, to such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court of the United States of America or the State of Delaware, California or New York having jurisdiction over the Company;
(G) Although such counsel has not conducted a freedom to operate analysis, to such counsel’s knowledge, the operation of the business of the Company as described in the Prospectus does not conflict with, infringe, misappropriate or otherwise violate the intellectual property rights of any third party;
(H) The statements included in (i) the Prospectus under the captions “Description of Capital Stock,” “Shares Eligible for Future Sale,” “Material U.S. Federal Income Tax Considerations for Non-U.S. Stockholders” and “Underwriting” and (ii) the Trust is structured so as not Registration Statement in Items 14 and 15, to the extent that such statements purport to constitute summaries of legal matters, documents or proceedings, in each case are accurate in all material respects;
(I) To such counsel’s knowledge and except as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a “covered fund” for purposes party or to which any of the regulations adopted to implement Section 619 properties of the Xxxx-Xxxxx Xxxx Street Reform Company is subject that, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the Company and Consumer Protection its subsidiaries, taken as a whole;
(J) Such counsel does not know of any contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(K) The Registration Statement has become effective under the Act and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted by the Commission or threatened by the Commission in writing to the Company;
(L) The Registration Statement, as of its effective date, and the Prospectus, at the time it was transmitted for filing with the Commission pursuant to Rule 424(b) under the Act (other than, in each case, the financial statements and related schedules and other financial, statistical and accounting data included therein), complied as to form in all material respects with the requirements of the Act and the applicable rules and regulations of the Commission thereunder, provided that in passing upon the compliance as to form of the Registration Statement and the Prospectus, such counsel may assume that the statements made therein and by the Company in connection with the preparation thereof are correct and complete;
(M) This Agreement has been duly authorized, executed and delivered by the Company; and In the course of the preparation of the Registration Statement and the Prospectus, such counsel participated in conferences with officers and other representatives of the Company, with Deloitte & Touche LLP, the Company’s independent public accountants who audited the financial statements contained in the Registration Statement and the Prospectus, with the Representatives and with counsel for the Underwriters, during which the contents of the Registration Statement and the Prospectus and other related matters were discussed. Although such counsel is not passing upon and has not independently checked or verified the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus (except to the extent that such statements relate to such counsel or as set forth in paragraphs (C) and (H) above), based on such counsel’s review of the Registration Statement and the Prospectus and such counsel’s participation in the preparation of the Registration Statement and the Prospectus as described above, no facts have come to such counsel’s attention that give such counsel reason to believe that the Registration Statement, as of the time the Registration Statement was declared effective by the Commission under the Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date or as of such Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, such counsel need express no opinion or belief above as to the financial statements and related schedules, and other financial, statistical and accounting data included therein or that should have been included therein.
(gv) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx Shearman & Bockius Sterling LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable such opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwritersor opinions, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the incorporation of the Company, the validity of the Offered Securities delivered on such Closing Date, the Registration Statements, the Prospectus and other related matters as the Representative Representatives may reasonably requestrequire, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary Company shall have furnished to such counsel such documents as they request for the Representative a certificate purpose of each enabling them to pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely as to the incorporation of the Depositor, BMW Financial Services Company and all other matters governed by Delaware law upon the UTI Beneficiary, as applicable, signed by its Chairman opinion of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicablePillsbury Winthrop LLP referred to above.
(vi) The Representatives shall have received a certificate, dated the such Closing Date, to of the effect that President or any Vice President and a principal financial or accounting officer of the signer of Company in which such certificate has reviewed the Registration Statementofficers, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed and distributed to any Underwriter; and, subsequent to the date of the most recent unaudited financial statements in the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the Prospectus or as described in such certificate.
(tvii) Each Class of Notes The Representatives shall have been rated received a letter, dated such Closing Date, of Deloitte & Touche which meets the rating requirements of subsection (i) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectuspurposes of this subsection.
(uviii) The Representative On or prior to the date of this Agreement, the Representatives shall have received, received lockup letters from each of BMW Financial Servicesthe officers, directors, stockholders and optionholders of the UTI Beneficiary and Company. The Company will furnish the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each Representatives with such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Corporation herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Corporation made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Corporation of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Corporation with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and the Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Corporation with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Corporation or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Mxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Corporation, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPRxxxxx X. Xxxxx XXX, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of the Corporation (who in such capacity provides legal services to the Indenture TrusteeCorporation), addressed or other appropriate counsel reasonably satisfactory to the Underwriters, dated Representatives (which may include the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) Each of Duke Energy Ohio, Inc., Progress Energy, Inc. and Piedmont Natural Gas Company, Inc., has been duly incorporated and is validly existing in good standing under the Underwriters may rely on each such opinion to laws of the same extent as though such opinion was addressed to each as jurisdiction of its dateincorporation and has the respective corporate power and authority and foreign qualifications necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus.
(sii) Each of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary shall have furnished Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary, its subsidiaries taken as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, whole.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement and 17g-10 under the Exchange Act Paying Agency Agreement have each been duly authorized, executed and will be timely complied withdelivered by the Corporation.
(wvi) The Depositor execution, delivery and performance by the Corporation of this Agreement, the Paying Agency Agreement and the Indenture and the issue and sale of the Notes will not violate or contravene any of the provisions of the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject, which affects in a material way the Corporation’s ability to perform its obligations under this Agreement, the Paying Agency Agreement, the Indenture and the Notes.
(vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms.
(viii) The Notes have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(ix) No consent, approval, authorization, order, registration or qualification is required to authorize, or for the Corporation to consummate the transactions contemplated by this Agreement and the Paying Agency Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters and except as required in Condition No. 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682, which condition has been complied with. Such counsel may state that such counsel’s opinions in paragraphs (vii) and (viii) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and by general principles of equity (whether enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement, as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Pricing Disclosure Package and the Prospectus under the caption “Form and Denominations.” In rendering the foregoing opinion, such counsel may state that such counsel does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws and may rely as to all matters of the laws of the States of South Carolina, letters Ohio, Indiana and documents Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, officers of the Representative or Corporation and other sources believed by such counsel to be reliable.
(f) You shall have received an opinion of Hxxxxx Axxxxxx Xxxxx LLP, counsel to the Underwriters Corporation, dated the Closing Date, to the effect that:
(i) The Corporation has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware.
(ii) The Corporation has the corporate power and corporate authority to execute and deliver this Agreement, the Paying Agency Agreement and the Supplemental Indenture and to consummate the transactions contemplated hereby.
(iii) This Agreement and the Paying Agency Agreement have each been duly authorized, executed and delivered by the Corporation.
(iv) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms.
(v) The Notes have been duly authorized and executed by the Corporation, and, when duly authenticated by the Trustee and issued and delivered by the Corporation against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Corporation, entitled to the benefits of the Indenture and enforceable against the Corporation in accordance with their terms.
(vi) The statements set forth (i) under the caption “Description of Debt Securities” (other than under the caption “Global Securities”) that are included in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture, the Paying Agency Agreement and the Notes, fairly summarize such provisions in all material respects.
(vii) The statements set forth under the caption “U.S. Federal Income Tax Considerations,” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(viii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement, the Paying Agency Agreement and the Indenture by the Corporation or the consummation by the Corporation of the transactions contemplated hereby, except for such consents, approvals, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. “Governmental Approval” means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be made or obtained by the Corporation pursuant to Applicable Laws, other than any consent, approval, license, authorization, validation, filing, qualification or registration that may have become applicable as a result of the involvement of any party (other than the Corporation) in the transactions contemplated by this Agreement and the Paying Agency Agreement or because of such parties’ legal or regulatory status or because of any other facts specifically pertaining to such parties and “Governmental Authority” means any court, regulatory body, administrative agency or governmental body of the State of North Carolina, the State of New York or the State of Delaware or the United States of America having jurisdiction over the Corporation under Applicable Law but excluding the North Carolina Utilities Commission, the New York State Public Service Commission and the Delaware Public Service Commission.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties made hereinon the part of the Company herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, and to the following additional conditions precedentconditions:
(a) On The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 1:00 P.M., Chicago Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 1:00 P.M., Chicago Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, each of as the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Datecase may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A, the information concerning the public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company will provide evidence satisfactory to the Representative of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Representative.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and the Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, the Disclosure Package and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment.
(d) On You shall not have advised the Closing DateCompany that the Registration Statement, the Representative shall have received Disclosure Package or the favorable Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact, which, in the opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to for the Underwriters, dated is material or omits to state a fact which, in the Closing Date opinion of such counsel, is material and in form and substance satisfactory is required to be stated therein or necessary to make the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the Trustbusiness or properties of the Company or its subsidiary, addressed taken as a whole, whether or not arising in the ordinary course of business, which, in the judgment of the Representative, makes it impractical or inadvisable to proceed with the Underwriters, dated Offering or purchase of the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersShares as contemplated hereby.
(f) The Representative There shall have received an opinion or opinions been furnished to you, as Representative of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated on the First Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Second Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.except as otherwise expressly provided below:
(i) On the Closing Date, the Representative shall have received the favorable An opinion of Xxxxxx XxXxxxxxx Will & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to for the Indenture TrusteeCompany, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement form and substance reasonably acceptable to the Transaction Documents to which it is a partyUnderwriters.
(ii) Such opinion or opinions of Sidley Austin LLP, are true and correctcounsel for the Underwriters, (iii) dated the Depositor, BMW Financial Services and First Closing Date or the UTI BeneficiarySecond Closing Date, as the case may be, with respect to the existence of the Company, the validity of the Shares, the Registration Statement, the Disclosure Package and the Prospectus, and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they reasonably request for the purpose of enabling them to pass upon such matters.
(iii) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(1) the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such closing date;
(2) the Closing Date and (iv) (in Commission has not issued an order preventing or suspending the case use of the Depositor and BMW Financial Services only) that Prospectus or any preliminary prospectus filed as a part of the Registration Statement, or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or are contemplated by under the Commission1933 Act; and
(3) subsequent to the date of the most recent financial statements included in the Registration Statement and Prospectus, and except as set forth or contemplated in the Prospectus, (A) none of the Company and its consolidated subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there has not been any change that has had or would have a material adverse effect upon the Company and its subsidiary taken as a whole or any material change in their short-term debt or long-term debt taken as a whole. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company and not of its officers personally as to the facts required in the immediately foregoing clauses to be set forth in said certificate.
(tiv) Each Class At the time the Pricing Agreement is executed and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you letters addressed to you, as Representative of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have receivedUnderwriters, from each of BMW Financial ServicesXxxxx Xxxxxxxx LLP, an independent registered public accounting firm, and KPMG LLP, an independent registered public accounting firm, the UTI Beneficiary first one to be dated the date of the Pricing Agreement, the second one to be dated the First Closing Date and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: third one (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents event of a second closing) to be dated the Second Closing Date, in form and (iv) designation substance reasonably satisfactory to the Underwriters. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of incumbency the Representative to proceed with the public offering or purchase of each such entitythe Shares as contemplated hereby.
(v) All requirements A certificate of Rules 15Ga-2 the chief executive officer and 17g-10 under the Exchange Act principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, regarding certain statistical or financial figures included or incorporated by reference in the Prospectus which you may reasonably request and which have not been and will be timely complied withotherwise verified by the letters referred to in clause (iv) above.
(wvi) Such further certificates and documents as you may reasonably request. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are approved by you and Sidley Austin LLP, counsel for the Underwriters, which approval shall not be unreasonably withheld. The Depositor Company shall provide furnish you with such manually signed or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel you request. If any condition to the Underwriters may reasonably requestUnderwriters’ obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of any Underwriter or the Company, except for the expenses to be paid or reimbursed by the Company pursuant to Sections 7 and 9 hereof and except to the extent provided in Section 11 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Heritage-Crystal Clean, Inc.)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Debentures will be subject to the accuracy of the representations and warranties made on the part of the Corporation herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Corporation made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Corporation of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Corporation with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Corporation with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at On or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Corporation or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Xxxxx’x Investors Service, Inc., S&P Global Ratings or Fitch Ratings, Inc. (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Corporation, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Debentures on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPX. Xxxxx III, counsel to Esq., Deputy General Counsel of Duke Energy Business Services LLC, a service company subsidiary of the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)Corporation, dated the Closing Date, to the effect that that:
(i) Each of Duke Energy Ohio, Inc., Progress Energy, Inc. and Piedmont Natural Gas Company, Inc., has been duly incorporated and is validly existing in good standing under the Underwriters may rely on each such opinion to laws of the same extent as though such opinion was addressed to each as jurisdiction of its dateincorporation and has the respective corporate power and authority and foreign qualifications necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus.
(sii) Each of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary shall have furnished Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services Corporation and the UTI Beneficiary, its subsidiaries taken as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, whole.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCorporation.
(wvi) The Depositor execution, delivery and performance by the Corporation of this Agreement and the Indenture and the issue and sale of the Debentures will not violate or contravene any of the provisions of the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject, which affects in a material way the Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Debentures.
(vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms.
(viii) The Debentures have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Debentures.
(ix) No consent, approval, authorization, order, registration or qualification is required to authorize, or for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Debentures by the Underwriters and except as required in Condition No. 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095 and G-9, Sub 682, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Such counsel shall provide state that nothing has come to his attention that has caused him to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to his attention that has caused him to believe that (i) the Registration Statement, including the Rule 430B Information, as of its effective date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus or any amendment or supplement thereto, as of their respective dates and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that he does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws and may rely as to all matters of the laws of the States of South Carolina, letters Ohio, Indiana and documents Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Representative or Corporation and other sources believed by him to be responsible.
(f) You shall have received an opinion of Hunton Xxxxxxx Xxxxx LLP, counsel to the Underwriters Corporation, dated the Closing Date, to the effect that:
(i) The Corporation has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware.
(ii) The Corporation has the corporate power and corporate authority to execute and deliver this Agreement and the Supplemental Indenture and to consummate the transactions contemplated hereby.
(iii) This Agreement has been duly authorized, executed and delivered by the Corporation.
(iv) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms.
(v) The Debentures have been duly authorized and executed by the Corporation, and, when duly authenticated by the Trustee and issued and delivered by the Corporation against payment therefor in accordance with the terms of this Agreement and the Indenture, the Debentures will constitute valid and binding obligations of the Corporation, entitled to the benefits of the Indenture and enforceable against the Corporation in accordance with their terms.
(vi) The statements set forth (i) under the caption “Description of Debt Securities” (other than under the caption “Global Securities”) that are included in the Base Prospectus and (ii) under the caption “Description of the Debentures” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Debentures, fairly summarize such provisions in all material respects.
(vii) The statements set forth under the caption “Material U.S. Federal Income Tax Considerations,” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(viii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Corporation or the consummation by the Corporation of the transactions contemplated hereby, except for such consents, approvals, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Debentures by the Underwriters. “Governmental Approval” means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be made or obtained by the Corporation pursuant to Applicable Laws, other than any consent, approval, license, authorization, validation, filing, qualification or registration that may have become applicable as a result of the involvement of any party (other than the Corporation) in the transactions contemplated by this Agreement or because of such parties’ legal or regulatory status or because of any other facts specifically pertaining to such parties and “Governmental Authority” means any court, regulatory body, administrative agency or governmental body of the State of North Carolina, the State of New York or the State of Delaware or the United States of America having jurisdiction over the Corporation under Applicable Law but excluding the North Carolina Utilities Commission, the New York Public Service Commission and the Delaware Public Service Commission.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes Securities will be subject to the accuracy of the respective representations and warranties made on the part of the Seller and Fleetwood Credit herein, to the accuracy of the statements of the respective officers of the Depositor Seller and BMW Financial Services Fleexxxxx Xxxdit made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services Fleexxxxx Xxxdit of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes The Underwriters and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy thereof orfrom Coopxxx & Xybrxxx X.X.P., with respect to independent public accountants ("Coopers & Lybrxxx") (i) on the Notes and Certificatesdate of this Agreement, a conformed copy thereof. The Transaction Documentsletter, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriterssuch date, substantially in the form of the drafts draft to which the Representative has agreed Underwriters have previously agreed, and otherwise substantially (ii) on the Closing Date, a letter, dated as of the Closing Date, updating the letter referred to in clause (i) above, which letters shall in each case be in form and substance reasonably satisfactory to the Representative Underwriters and counsel to for the Underwriters; provided, that .
(b) If the Underwriters shall have received the Accountant’s Due Diligence Report at or Effective Time is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the ProspectusEffective Time shall have occurred not later than 10:00 P.M., each Free Writing Prospectus listed New York City time, on Schedule III hereto the date of this Agreement or approved in writing such later date as shall have been consented to by the Depositor Underwriters. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller or BMW Financial Servicesthe Underwriters, shall be contemplated by the Commission.
(dc) On the Closing Date, the Representative The Underwriters shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, an officer's certificate dated the Closing Date and in form and substance satisfactory to by the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, Treasurer or the principal financial officer, Secretary of (i) the principal accounting officer or any of Seller representing and warranting to the foregoing officers of its general partnerUnderwriters that, as applicable, dated of the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services Seller in the Sale and the UTI BeneficiaryServicing Agreement are true and correct and (ii) Fleetwood Credit representing and warranting that, as of the case may beClosing Date, the representations and warranties of Fleetwood Credit in this the Sale and Servicing Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(td) Each Class of Notes The Underwriters shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectusreceived an opinion of Timoxxx X. Xxxxx, Xxq.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary Senior Vice President and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided Assistant General Counsel to the Representative conformed copies of Seller, or, insofar as such opinionsmatters relate to California law, certificatesMitcxxxx, letters and documents as the Representative or counsel to the Underwriters may reasonably request.Xxlbxxxxxx & Xnupx XXX, addressed to
Appears in 1 contract
Samples: Underwriting Agreement (Fleetwood Credit Receivables Corp)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties made hereinon the part of the Company and each of the Selling Stockholders herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services each of the Selling Stockholders of their respective obligations hereunder, and to the following additional conditions precedentconditions:
(a) On The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 1:00 P.M., Chicago Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 1:00 P.M., Chicago Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, each of as the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Datecase may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Depositor Company, the Selling Stockholders or BMW Financial Servicesyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430B, the information concerning the public offering price of the Shares and price-related information, and such other information omitted from the Base Prospectus in reliance on Rule 430B, shall have been transmitted to the Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company will provide evidence satisfactory to the Representative of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430B and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Representative.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the Shares, the execution and delivery of this Agreement and the Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, the Disclosure Package, any Issuer Limited Use Free Writing Prospectus and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment.
(d) On You shall not have advised the Closing DateCompany that the Registration Statement, the Representative shall have received Disclosure Package, any Issuer Limited Use Free Writing Prospectus, when considered together with the favorable Disclosure Package, or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact, which, in the opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to for the Underwriters, dated is material or omits to state a fact which, in the Closing Date opinion of such counsel, is material and in form and substance satisfactory is required to be stated therein or necessary to make the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the Trustbusiness or properties of the Company or its subsidiaries, addressed taken as a whole, whether or not arising in the ordinary course of business, which, in the judgment of the Representative, makes it impractical or inadvisable to proceed with the Underwriters, dated public offering of the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersShares as contemplated hereby.
(f) The Representative There shall have received an opinion or opinions been furnished to you, as Representative of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated on the First Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Second Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.except as otherwise expressly provided below:
(i) On the Closing Date, the Representative shall have received the favorable An opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLPL.L.P., counsel to for the Indenture TrusteeCompany, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement form and substance reasonably satisfactory to the Transaction Documents Underwriters.
(ii) A letter from Xxxxx & Xxxxxxx L.L.P., counsel for the Company, addressed to which it is a party, are true the Underwriters and correct, (iii) dated the Depositor, BMW Financial Services and First Closing Date or the UTI BeneficiarySecond Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.
(iii) Opinions of counsel for each of the Selling Stockholders, in each case addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.
(iv) Such opinion or opinions of Sidley Austin LLP, counsel for the Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the existence of the Company, the validity of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they reasonably request for the purpose of enabling them to pass upon such matters.
(v) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(1) the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(2) the Closing Date and (iv) (in Commission has not issued an order preventing or suspending the case use of the Depositor and BMW Financial Services only) that Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or are contemplated by under the Commission1933 Act; and
(3) subsequent to the date of the most recent financial statements included in the Registration Statement and Prospectuses, and except as set forth or contemplated in the Prospectuses, (A) none of the Company and its consolidated subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there has not been any change that has had or would reasonably be expected to have a material adverse effect upon the Company and its subsidiaries taken as a whole or any material change in their short-term debt or long-term debt. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1), (2) and (3) to be set forth in said certificate.
(tvi) Each Class A certificate of Notes each of the Selling Stockholders dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that the representations and warranties of such Selling Stockholder set forth in Section 3 are true and correct as of such date and such Selling Stockholder has complied with all the agreements and satisfied all the conditions on the part of such Selling Stockholder to be performed or satisfied at or prior to such date.
(vii) At the time the Pricing Agreement is executed and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you a letter addressed to you, as Representative of the Underwriters, from McGladrey & Xxxxxx, LLP, an independent registered public accountant firm, the first one to be dated the date of the Pricing Agreement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, in form and substance reasonably satisfactory to the Underwriters. There shall not have been rated the rating any change or decrease specified in the Ratings Free Writing Prospectus by the hired NRSROs specified letters referred to in this subparagraph which makes it impractical or inadvisable in the Ratings Free Writing Prospectusjudgment of the Representative to proceed with the public offering or purchase of the Shares as contemplated hereby.
(uviii) The Representative shall have received, from each A certificate of BMW Financial Services, the UTI Beneficiary chief executive officer and the Depositorprincipal financial officer of the Company, a certificate executed by a secretary dated the First Closing Date or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreementthe Second Closing Date, as applicablethe case may be, (iii) applicable resolutions authorizing the transactions contemplated hereby and regarding certain statistical or financial figures included in the Transaction Documents Prospectus which you may reasonably request and which have not been otherwise verified by the letters referred to in clause (ivvii) designation above, such verification to include the provision of incumbency of each documentary evidence supporting any such entitystatistical or financial figure.
(vix) Such further certificates and documents as you may reasonably request. All requirements of Rules 15Ga-2 such opinions, certificates, letters and 17g-10 under documents shall be in compliance with the Exchange Act have been provisions hereof only if they are satisfactory to you and will to Sidley Austin LLP, counsel for the Underwriters, which approval shall not be timely complied with.
(w) unreasonably withheld. The Depositor Company shall provide furnish you with such manually signed or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel you request. If any condition to the Underwriters may reasonably requestUnderwriters’ obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company and the Selling Stockholders without liability on the part of any Underwriter or the Company or the Selling Stockholders, except for the expenses to be paid or reimbursed by the Company pursuant to Sections 8 and 10 hereof and except to the extent provided in Section 12 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (American Public Education Inc)
Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase and pay for the Notes will Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder set forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made hereinand, with respect to the accuracy Optional Shares, as of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when each Option Closing Date as though then made, to the timely performance by the Depositor Company and BMW Financial Services the Selling Stockholder of their respective covenants and other obligations hereunder, and to each of the following additional conditions precedentconditions:
(a) On the Closing Date, each of the Transaction Documentsdate hereof, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Representatives shall have received from Ernst & Young LLP, independent registered public accountants for the Company, a fully executed copy thereof orletter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the Notes audited and Certificates, a conformed copy thereof. The Transaction Documentsunaudited financial statements and certain financial information contained in the Registration Statement, the SUBI CertificateTime of Sale Prospectus, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeeach free writing prospectus, if any.
(bi) Both at The Company shall have filed the Prospectus with the Commission (including the information previously omitted from the Registration Statement pursuant to Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or before the date hereofCompany shall have filed a post-effective amendment to the Registration Statement containing the information previously omitted from the Registration Statement pursuant to such Rule 430B, and on or before the Closing Date, the Representative such post-effective amendment shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)become effective.
(cii) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall have been issued be in effect, and no proceedings for that such purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated threatened by the Commission.
(iii) If a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(c) For the period from and after the date of this Agreement and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material Adverse Effect; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.
(d) On each of the First Closing Date and each Option Closing Date, the Representative Representatives shall have received the favorable written opinion, negative assurance letter and tax opinion or opinions of in-house Xxxxx Lovells US LLP, counsel to for the Depositor and BMW Financial Services addressed to the UnderwritersCompany, dated as of such date, in the forms attached hereto as Exhibit X-0, Xxxxxxx X-0 and Exhibit A-3 respectively and to such further effect as the Representatives shall reasonably request.
(e) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the opinion of Sidley Austin LLP, counsel for the Underwriters in connection with the offer and sale of the Offered Shares, in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated as of such date, with executed copies for each of the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to other Underwriters named on the Representative and counsel to the UnderwritersProspectus cover page.
(f) The Representative On each of the First Closing Date and each Option Closing Date, the Representatives shall have received an opinion a certificate executed on behalf of the Company and the Operating Partnership by its (or opinions its general partner’s) Chairman of Xxxxxxthe Board, Xxxxx & Bockius LLPPresident or any Executive Vice President and the Chief Financial Officer, counsel dated as of such date, to the Depositor, BMW Financial Services effect set forth in Section 6(b)(ii) and the Trust, addressed further to the Underwriters, dated the Closing Date and addressing the following issues effect that:
(i) none for the period from and including the date of the Depositorthis Agreement through and including such date, the Trust or the Vehicle Trust is required to register under the Investment Company Act and there has not occurred any Material Adverse Effect;
(ii) the Trust is structured so as not to constitute a “covered fund” for purposes representations, warranties and covenants of the regulations adopted Company and the Operating Partnership set forth in Section 1(A) of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iii) the Company and the Operating Partnership have complied with all the agreements hereunder and satisfied all the conditions on its part to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actbe performed or satisfied hereunder at or prior to such date.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to On each of the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the First Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the each Option Closing Date, the Representative Representatives shall have received the favorable opinion of Xxxxxxxxfrom Ernst & Young LLP, Xxxxxx & Finger, P.A., special Delaware counsel independent registered public accountants for the Depositor and BMW Financial ServicesCompany, addressed to the Underwritersa letter dated such date, dated the Closing Date and in form and substance satisfactory to the Representative and counsel Representatives, which letter shall: (i) reaffirm the statements made in the letter furnished by them pursuant to Section 6(a), except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the UnderwritersFirst Closing Date or the applicable Option Closing Date, as the case may be; and (ii) cover certain financial information contained in the Prospectus.
(h) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, dated as of such date, in the form attached hereto as Exhibit B and to such further effect as the Representatives shall reasonably request.
(i) On each of the First Closing Date and each Option Closing Date, the Representative Representatives shall have received receive a written certificate executed by the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the UnderwritersSelling Stockholder, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Datedate, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.that:
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date representations, warranties and covenants of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as Selling Stockholder set forth in or contemplated in Section 1(B) of this Agreement are true and correct with the Prospectus (exclusive same force and effect as though expressly made by the Selling Stockholder on and as of any supplement thereto), such date; and
(ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date.
(j) On or prior to the date hereof, the Company shall have furnished to the Representatives an agreement in the form of Exhibit C hereto from each of the persons listed on Exhibit D hereto, and each such agreement shall be in full force and effect on each of the First Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commissioneach Option Closing Date.
(tk) Each Class of Notes In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated by this Agreement, such Rule 462(b) Registration Statement shall have been rated filed with the rating specified in Commission on the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectusdate of this Agreement and shall have become effective automatically upon such filing.
(ul) The Representative On or before each of the First Closing Date and each Option Closing Date, the Representatives and counsel for the Underwriters shall have receivedreceived such information, from each documents and opinions as they may reasonably request for the purposes of BMW Financial Servicesenabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the UTI Beneficiary accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company and the Depositor, a certificate executed Selling Stockholder in connection with the issuance and sale of the Offered Shares as contemplated herein and in connection with the other transactions contemplated by a secretary or assistant secretary thereof to which this Agreement shall be attached certified copies of the: satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(i) certificate None of formationthe Operating Partnership, the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Time of Sale Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Prospectus, and (ii) limited liability company agreement since the respective dates as of which information is given in the Time of Sale Prospectus there shall not have been any change in the capital stock of the Company or limited partnership agreementOP Units of the Operating Partnership or long-term debt of the Operating Partnership, the Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Operating Partnership, the Company or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Time of Sale Prospectus, the effect of which, in any such case described in clause (iiii) applicable resolutions authorizing or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the transactions contemplated hereby offering or the delivery of the Offered Shares being delivered at the First Closing Date or any Option Closing Date on the terms and in the Transaction Documents manner contemplated in the Time of Sale Prospectus. If any condition specified in this Section 6 is not satisfied when and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause as required to be provided satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to the Representative conformed copies of such opinions, certificates, letters Company and documents as the Representative Selling Stockholder at any time on or counsel prior to the Underwriters may reasonably requestFirst Closing Date and, with respect to the Optional Shares, at any time on or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 4, Section 7, Section 9 and Section 10 shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Depositor and DCFS herein, to the accuracy of the statements certifications of officers of the Depositor and BMW Financial Services DCFS made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, The Registration Statement shall be in full force and effect and no default shall exist thereundereffective at the Execution Time, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Depositor or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(db) Each of the Preliminary Prospectus and the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. The Pricing Free Writing Prospectus shall have been filed with the Commission in accordance with Rule 433(d) of the Rules and Regulations.
(c) On or prior to the date of this Agreement and on or prior to the Closing Date, the Representative Representatives shall have received the favorable opinion a letter or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwritersletters, dated as of the date of this Agreement and as of the Closing Date Date, respectively, of KPMG LLP, independent registered public accountants, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representative Representatives and counsel their counsel.
(d) Subsequent to the Underwritersexecution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Issuing Entity, the Depositor or DCFS which, in the judgment of the Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any general commercial banking moratorium declared by Federal, Delaware or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress, or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency on the U.S. financial markets makes it impractical or inadvisable to proceed with the offering, sale of and payment for the Notes.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx Sidley Austin LLP, counsel to DCFS, the Depositor, BMW Financial Services Depositor and the Trust, Issuing Entity and such other counsel acceptable to the Underwriters addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the UnderwritersRepresentatives, dated the Closing Date and satisfactory in form and substance to the Representative Representatives and counsel their counsel, substantially to the Underwriterseffect that:
(i) DCFS is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(nii) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel Depositor is duly qualified to the Owner Trustee, addressed to the Underwriters, dated the Closing Date do business and satisfactory is in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestgood standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such counsel shall license or approval would have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the DepositorReceivables as a whole.
(iii) When the Notes have been duly executed and delivered by the Owner Trustee on behalf of the Issuing Entity, BMW Financial Services or authenticated by the UTI BeneficiaryIndenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, whether or not arising from transactions the Notes will be duly issued, will constitute legal, valid and binding obligations of the Issuing Entity enforceable against the Issuing Entity in accordance with their terms and will be entitled to the ordinary course of businessbenefits and security afforded by the Indenture, except as set forth in enforceability may be limited by applicable bankruptcy, insolvency or contemplated in similar laws affecting the Prospectus enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
(exclusive iv) Each of any supplement thereto), the Basic Documents (iiother than the Trust Agreement) to which the representations Depositor is a party has been duly executed and warranties of delivered by the Depositor, BMW Financial Services and is a legal, valid and binding obligation of the UTI BeneficiaryDepositor enforceable against the Depositor in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
(v) This Agreement has been duly executed and delivered by each of the Depositor and DCFS.
(vi) Each of the Basic Documents to which DCFS is a party has been duly executed and delivered by DCFS and is a legal, valid and binding obligation of DCFS enforceable against DCFS in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the case enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
(vii) Each of the Basic Documents to which the Issuing Entity is a party is the legal, valid and binding obligations of the Issuing Entity, enforceable against the Issuing Entity in accordance with its terms, except as enforceability may bebe limited by applicable bankruptcy, in insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
(viii) The execution and delivery by DCFS, the Depositor or the Issuing Entity of this Agreement and the Transaction Documents or any Basic Document to which it is a party, and the performance of their respective obligations hereunder and thereunder, will not (1) conflict with, or result in a breach, violation or acceleration of, or constitute a default under, any term or provision of any indenture or other agreement or instrument to which DCFS or the Depositor is a party or by which either of them is bound, or (2) result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them.
(ix) There are true and correctno actions, proceedings or investigations pending or, to the best of such counsel’s knowledge, threatened before any court, administrative agency, or other tribunal (1) asserting the invalidity of the Issuing Entity or any of the Basic Documents, (iii2) seeking to prevent the Depositorconsummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, BMW Financial Services or (3) that could reasonably be expected to materially and adversely affect the performance (A) by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Administration Agreement, the Receivables Purchase Agreement or the Sale and Servicing Agreement or (B) by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, the Receivables Purchase Agreement, the Trust Agreement or the Sale and Servicing Agreement.
(x) No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated in the Basic Documents, except for such filings with respect to the transfer of the Receivables to the Depositor pursuant to the Receivables Purchase Agreement and the UTI Beneficiarytransfer of the Receivables to the Issuing Entity pursuant to the Sale and Servicing Agreement and as may be required under state securities or Blue Sky laws of various jurisdictions.
(xi) To the best knowledge of such counsel, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which DCFS or the Depositor is a party or by which either of them is bound, which default is or would have a material adverse effect on the financial condition, earnings, business or properties of DCFS and its subsidiaries, taken as a whole.
(xii) The First Tier Assignment (as defined in the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to Receivables Purchase Agreement) dated as of the Closing Date and (iv) (in the case of from DCFS to the Depositor and BMW Financial Services only(the “DCFS First Tier Assignment”) that no stop order suspending the effectiveness of the Registration Statement has been issued duly executed and no proceedings for that purpose have been instituted delivered by DCFS and constitutes the legal, valid and binding obligation of DCFS, enforceable against DCFS in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or are pending similar laws affecting the enforcement of creditors’ rights generally or are contemplated by the Commissionequitable principles relating to enforceability.
(txiii) Each Class Regarding (x) the “true sale” of Notes shall have been rated the rating specified in Receivables from DCFS to the Ratings Free Writing Prospectus by Depositor pursuant to the hired NRSROs specified in Receivables Purchase Agreement and (y) substantive non-consolidation issues with respect to DCFS and the Ratings Free Writing ProspectusDepositor.
(uxiv) The Representative shall have received, from each of BMW Financial Services, Receivables Purchase Agreement grants to the UTI Beneficiary and the Depositor, Depositor a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and valid security interest in DCFS’s rights in the Transaction Documents Receivables and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.the
Appears in 1 contract
Samples: Underwriting Agreement (Mercedes-Benz Auto Receivables Trust 2010-1)
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Option Securities to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties made hereinof the Company and the Manager herein on the date hereof and as of each Closing Date, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Manager of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Underwriters shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectusletter, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectusthis Agreement, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG Xxxxx Xxxxxxxx LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and counsel the applicable Securities Act Regulations and the rules and regulations of the PCAOB and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Underwriters; providedfinancial statements and certain financial information contained in the Registration Statement, the General Disclosure Package, the Prospectus and each Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectus that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth is an “electronic road show,” as defined in Section 2(a)(xxxvii)(BRule 433(h)).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Securities Act Regulations and Section 7(h5(c) hereof; on of this Agreement.
(c) The Company shall have appointed the Trustee, or prior an agent or agents satisfactory to the Trustee, to act as registrar, conversion agent and paying agent under the Indenture.
(d) Prior to such Closing Date, Date (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the General Disclosure Package shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
Commission nor shall there be any suspension of the qualification of the Offered Securities for sale in any jurisdiction or institution or threatening of any proceeding for such purpose and (dii) On all requests for additional information on the Closing Date, part of the Representative Commission shall have received the favorable opinion or opinions of in-house counsel been complied with to the Depositor and BMW Financial Services addressed to reasonable satisfaction of the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement there shall not have occurred (i) any change, BMW Financial Services or any development or event involving a prospective change, in the condition (financial or other), business, earnings, properties, results of operations (as described in the Prospectus), assets or prospects of the Company and the TrustSubsidiaries taken as one enterprise which, addressed in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the Underwriterspublic offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) promulgated under the Exchange Act), dated or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Closing Date Company (other than an announcement with positive implications of a possible upgrading, and addressing corporateno implication of a possible downgrading, enforceability of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the NYSE or The Nasdaq Global Select Market, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and securities matters satisfactory in form and substance to payment for the Representative and counsel to the UnderwritersOffered Securities.
(f) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersnegative assurance letter, dated the Closing Date and addressing Date, of Ledgewood, counsel for the following issues Company, substantially in the form attached hereto as Exhibit A hereto. In rendering such opinion, Ledgewood may rely (i) none as to the incorporation of the DepositorCompany and all other matters governed by Maryland law upon the opinion of Xxxxx & Lardner LLP, special Maryland counsel to the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) as to the Trust is structured so as not to constitute a “covered fund” for purposes incorporation or formation of the regulations adopted to implement Section 619 Subsidiaries organized under the laws of the Xxxx-Xxxxx Xxxx Street Reform Cayman Islands and Consumer Protection Actall other matters governed by the laws of the Cayman Islands upon the opinions of Xxxxxx and Xxxxxx, special Cayman Islands counsel for the Company.
(g) The Representative Underwriters shall have received a negative assurance letter from Xxxxxxan opinion, dated such Closing Date, of Xxxxx & Bockius Lardner LLP, special Maryland counsel to for the DepositorCompany, BMW Financial Services and substantially in the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwritersattached hereto as Exhibit B hereto.
(h) On the The Underwriters shall have received a tax opinion, dated such Closing Date, the Representative shall have received the favorable opinion of XxxxxxxxLedgewood, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial ServicesCompany, addressed to substantially in the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersattached hereto as Exhibit C hereto.
(i) On With respect to each Subsidiary incorporated or formed under the Closing Datelaws of the Cayman Islands, the Representative Underwriters shall have received the favorable opinion opinions, dated such Closing Date, of Xxxxxx & Xxxxxxxxx LLPand Xxxxxx, special Indiana Cayman Islands counsel to for the UTI BeneficiaryCompany, addressed to substantially in the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersforms attached as Exhibit D hereto.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters[Reserved].
(k) On The Underwriters shall have received an opinion and negative assurance letter, dated the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx Hunton & Xxxxxxx Xxxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to for the Underwriters, with respect to (i) certain true sale the incorporation of the Company, the validity of the Offered Securities delivered on such Closing Date, the Registration Statement, the General Disclosure Package and nonconsolidation bankruptcy the Prospectus and other related matters as the Underwriters may require, and (ii) certain security interest the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Hunton & Xxxxxxxx LLP may rely as to the incorporation of the Company and all other matters governed by Maryland law upon the opinion of Xxxxx & Lardner LLP referred to above.
(l) The Representative Underwriters shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwritersa certificate, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive Officer or President and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, shall state that (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services Company and the UTI Beneficiary, as the case may be, Manager in this Agreement and the Transaction Documents to which it is a party, are true and correct, ; (iiiii) the Depositor, BMW Financial Services Company and the UTI Beneficiary, as the case may be, has Manager have complied with the all agreements and satisfied the all conditions on its their part to be performed or satisfied hereunder at or prior to the such Closing Date and Date; (iviii) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference therein has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents Commission and (iv) designation subsequent to the respective dates of incumbency of each the most recent financial statements in the General Disclosure Package, there has been no Material Adverse Effect except as set forth in the General Disclosure Package and the Prospectus or as described in such entitycertificate. In addition to the matters set forth in this subsection (l), the certificate shall also address certain matters, representations, warranties, covenants agreements and conditions addressed in this Agreement or as may be reasonably requested.
(vm) All The Underwriters shall have received a letter, dated such Closing Date, of Xxxxx Xxxxxxxx LLP which meets the requirements of Rules 15Ga-2 and 17g-10 under subsection (a) of this Section, except that the Exchange Act have been and specified date referred to in such subsection will be timely complied witha date not more than three days prior to such Closing Date for the purposes of this subsection.
(wn) On or prior to the date of this Agreement, the Underwriters shall have received lock-up letters in substantially the form attached hereto as Exhibit E (the “Lock-Up Agreements”) from each of the executive officers and directors of the Company, members of the Company’s investment committee, the Manager, and Resource America.
(o) The Depositor Underlying Securities shall provide or cause have been approved for listing on the NYSE, subject only to be provided official notice of issuance.
(p) The Company shall have furnished to the Representative Underwriters at the First Closing Date and each Option Closing Date (if any) such further customary information, opinions, certificates, letters and documents as the Representatives may reasonably request. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. The Representatives may in their sole discretion waive compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Option Closing Date or otherwise. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned in this Section 7 or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may reasonably requestbe canceled at, or any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Company with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Mxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPRxxxxx X. Xxxxx III, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC (who in such capacity provides legal services to the Indenture TrusteeCompany), addressed the service company subsidiary of Duke Energy Corporation, or other appropriate counsel reasonably satisfactory to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
Representatives (m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and which may include Duke Energy Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the Underwriters may rely on each such opinion law of the State of North Carolina, with power and authority (corporate and other) to own its properties and conduct its business as described in the same extent as though such opinion was addressed Pricing Disclosure Package and the Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Company is duly qualified to do business in each jurisdiction in which the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, Company.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCompany.
(wvi) The Depositor issue and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles or Bylaws of the Company, the North Carolina Business Corporation Act or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company, any of its properties or any of its subsidiaries, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company is a party or by which it or its property is bound or to which any of its property or assets is subject or any instrument filed or incorporated by reference as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2019 or any subsequent Quarterly Report on Form 10-Q or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2019 or identified in Annex A to this Agreement, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes.
(vii) The North Carolina Utilities Commission has issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to this Agreement.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and qualified under the 1939 Act, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms.
(ix) The Notes have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(x) No consent, approval, authorization, order, registration or qualification of or with any federal or North Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and (ix) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that such counsel does not express any opinion concerning any law other than the law of the State of North Carolina or, to the Representative conformed copies of such extent set forth in the foregoing opinions, certificatesthe federal securities laws. Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, letters officers of the Company and documents as the Representative or other sources believed by such counsel to be reliable.
(f) You shall have received an opinion of Hunton Axxxxxx Xxxxx LLP, counsel to the Underwriters Company, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(iii) The Notes have been duly authorized and executed by the Company, and, when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
(iv) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(vi) No Governmental Approval (as defined below), which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby; except for such consents, approvals, authorizations, orders, registrations or qualifications as may reasonably requestbe required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(vii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(viii) The execution and delivery by the Company of this Agreement and the Indenture and the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Notes, will not violate or conflict with, or result in any contravention of, any Applicable Laws (as defined below) of the States of North Carolina and New York.
(ix) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.
Appears in 1 contract
Samples: Underwriting Agreement (Piedmont Natural Gas Co Inc)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties made hereinon the part of the Company and the Selling Stockholders herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Stockholders of their respective obligations hereunder, and to the following additional conditions precedentconditions:
(a) On The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 1:00 P.M., Chicago Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 1:00 P.M., Chicago Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, each of as the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Datecase may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Depositor Company, the Selling Stockholders or BMW Financial Servicesyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period and the Company will provide evidence satisfactory to the Representatives of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Representatives.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and the Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment.
(d) On You shall not have advised the Closing DateCompany that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact, which, in the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to for the Underwriters, dated is material or omits to state a fact which, in the Closing Date opinion of such counsel, is material and in form and substance satisfactory is required to be stated therein or necessary to make the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the Trustbusiness or properties of the Company or its subsidiaries, addressed whether or not arising in the ordinary course of business, which, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the Underwriters, dated public offering or purchase of the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersShares as contemplated hereby.
(f) The Representative NASD shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel confirmed that it has not raised any objection with respect to the Depositor, BMW Financial Services fairness and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none reasonableness of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act underwriting terms and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actarrangements.
(g) The Representative There shall have received a negative assurance letter from Xxxxxxbeen furnished to you, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to as Representatives of the Underwriters, dated on the First Closing Date satisfactory in form and substance to or the Representative and counsel to the Underwriters.
(h) On the Second Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.except as otherwise expressly provided below:
(i) On the Closing Date, the Representative shall have received the favorable An opinion of Xxxxxx Testx, Xxrwxxx & Xxxxxxxxx LLPXhibxxxxx, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to for the Indenture TrusteeCompany, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement the form attached hereto as Exhibit C.
(ii) An opinion of Arnheim Tite & Lewix, xxunsel for the Company, addressed to the Underwriters and dated the Transaction Documents to which it is a party, are true and correct, (iii) First Closing Date or the Depositor, BMW Financial Services and the UTI BeneficiarySecond Closing Date, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.form attached hereto as Exhibit D.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing An opinion of Kirkxxxx & Xllix, xxunsel for the Venture Capital Selling Stockholders, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(1) each of the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of each Venture Capital Selling Stockholder and constitutes a legal, valid and binding agreement of such Venture Capital Selling Stockholder enforceable in accordance with its terms;
(2) each of this Agreement and the Pricing Agreement has been duly authorized, executed and delivered by or on behalf of each Venture Capital Selling Stockholder; the Agents and the Custodian for such Venture Capital Selling Stockholders have been duly and validly authorized to carry out all transactions contemplated herein on behalf of such Venture Capital Selling Stockholders; and the execution and performance of this Agreement and the Pricing Agreement and the consummation by such Venture Capital Selling Stockholders of the transactions contemplated hereby herein and therein will not result in a breach or violation of any of the Transaction Documents terms and (iv) designation provisions of, or constitute a default under, any agreement, franchise, license, indenture, mortgage, deed of incumbency of each trust, or other instrument known to such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.which any such
Appears in 1 contract
Samples: Underwriting Agreement (Onesource Information Services Inc)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties made hereinon the part of the Company and the Selling Stockholders herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Selling Stockholders of their respective obligations hereunder, and to the following additional conditions precedentconditions:
(a) On The Registration Statement shall have become effective either prior to the execution of this Agreement or not later than 1:00 P.M., Chicago Time, on the first full business day after the date of this Agreement, or such later time as shall have been consented to by you but in no event later than 1:00 P.M., Chicago Time, on the third full business day following the date hereof; and prior to the First Closing Date or the Second Closing Date, each of as the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Datecase may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Depositor Company, the Selling Stockholders or BMW Financial Servicesyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period and the Company will provide evidence satisfactory to the Representatives of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Representatives and to the extent required by this Agreement.
(c) You shall not have advised the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel Subsequent to the Depositor execution and BMW Financial Services addressed delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries, whether or not arising in the ordinary course of business, which, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the Underwriters, dated public offering or purchase of the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersShares as contemplated hereby.
(e) The Representative NASD shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel confirmed that it has not raised any objection with respect to the Depositor, BMW Financial Services fairness and reasonableness of the Trust, addressed to the Underwriters, dated the Closing Date underwriting terms and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwritersarrangements.
(f) The Representative There shall have received an opinion or opinions been furnished to you, as Representatives of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated on the First Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Second Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.except as otherwise expressly provided below:
(i) On the Closing Date, the Representative shall have received the favorable An opinion of Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxxxx LLPXxxx (Illinois), special Indiana counsel to for the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust Company and the TrustSelling Stockholders, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, with respect to certain securities law issues and other related matters as the Representative case may reasonably request, and such counsel shall have received such papers and information be in the form attached hereto as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.Exhibit C.
(rii) The Representative shall have received copies If the Underwriters elect to exercise their option to purchase the Option Shares as set forth in Section 5 of each this Agreement, an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel delivered to any rating agencyfor the Selling Stockholders, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), Underwriters and dated the Second Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.that:
(s1) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the DepositorPower of Attorney and Custody Agreement has been duly authorized, BMW Financial Services executed and the UTI Beneficiarydelivered by or on behalf of each Selling Stockholder who is a natural person and constitutes a legal, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer valid and binding agreement of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best Selling Stockholder enforceable in accordance with its terms;
(2) each of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it Pricing Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Stockholder who is a party, are true and correct, natural person;
(iii3) the Depositor, BMW Financial Services compliance by each Selling Stockholder with the terms and provisions of the Underwriting Agreement and the UTI BeneficiaryPricing Agreement will not, except as would not materially impair the case may beability of such Selling Stockholder to perform its obligations under the Underwriting Agreement and the Pricing Agreement, has complied contravene any provision of any Applicable Laws or Applicable Orders, PROVIDED that in rendering such opinion, such counsel need not express any opinion with the agreements and satisfied the conditions on its part respect to be performed (x) any securities or satisfied at or prior to the Closing Date and (iv) (in the case blue Sky laws of the Depositor and BMW Financial Services onlyvarious states or the securities laws of foreign jurisdictions or (y) that no stop order suspending the effectiveness of information contained, in, or the accuracy, completeness or correctness of, the Prospectus or the Registration Statement has been issued or the compliance thereof as to form with the 1933 Act and the rules and regulations promulgated thereunder; and no proceedings Government Approval, which has not been obtained or taken and is not in full force and effect, is required for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class execution, delivery and performance of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary Underwriting Agreement and the DepositorPricing Agreement by such Selling Stockholder, a certificate executed compliance by a secretary or assistant secretary such Selling Stockholder with all the provisions thereof to which shall be attached certified copies and the consummation of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby thereby, PROVIDED that in rendering such opinion, such counsel need not express any opinion with respect to (x) any securities or Blue Sky laws of the various states of the securities laws of foreign jurisdictions, or (y) the rules and in regulations of the Transaction Documents and (iv) designation of incumbency of each such entity.NASD; and
(v4) All requirements upon transfer of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided Option Shares to the Representative conformed copies Underwriters, the Underwriters will acquire all of the Selling Stockholders' rights in such opinions, certificates, letters and documents as Option Shares free of all adverse claims. "Transfer" of the Representative or counsel Option Shares to the Underwriters will occur upon the making by The Depository Trust Company of appropriate entries transferring the Options Shares on its books and records to the account of the Underwriters at The Depository Trust Company. In rendering such opinion, such counsel may reasonably requeststate that they are relying, as to factual matters, on certificates of the Selling Stockholders, in which case their opinion is to state that they are so doing and copies of said certificates are to be attached to the opinion unless said certificates (or the information therein) have been furnished to the Representatives in other form.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Underwritten Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Seller and TMCC herein, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services TMCC made in any officers’ certificates pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services TMCC of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On (i) the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes Representatives and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy thereof orletter, dated the date of delivery thereof, of PriceWaterhouseCoopers LLP confirming that they are independent public accountants with respect to the Notes Seller and Certificates, a conformed copy thereof. The Transaction Documents, TMCC within the SUBI Certificate, meaning of the Notes Act and the Certificates shall be substantially Rules and Regulations and with respect to certain information contained in the forms heretofore provided to the Representative.
(b) Both at or before the date hereofRegistration Statement, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Designated Static Pool Information and substantially in the form of the drafts draft to which the Representative has Representatives previously have agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representatives and counsel for the Underwriters and (ii) the Closing Date, the Representatives and the Seller shall have received (x) a letter, dated as of the Closing Date, from PriceWaterhouseCoopers LLP, updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the Representative Representatives and counsel for the Representatives and (y) a letter, dated as of the Closing Date, from PriceWaterhouseCoopers LLP relating to certain agreed-upon procedures regarding data integrity in form and substance reasonably satisfactory to the Underwriters; provided, that Representatives and counsel for the Underwriters shall have received Representatives (which letter may be included as part of the Accountant’s Due Diligence Report at or prior letter referred to the deadline set forth in Section 2(a)(xxxvii)(Bclause (x)).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 7(h) hereofRegulations; on or prior to and, before the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller or BMW Financial Servicesthe Underwriters, shall be contemplated by the CommissionCommission or by any authority administering any state securities or blue sky law.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in or affecting the condition, financial or otherwise, earnings, business or operations of the Seller, TMCC or the Trust which, in the reasonable judgment of the Representatives (after consultation with the Underwriters), materially impairs the investment quality of the Underwritten Notes, or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Underwritten Notes; (ii) any downgrading in the rating of any debt securities of TMCC or any of its direct or indirect subsidiaries by the Rating Agencies, or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of TMCC on any exchange or in the over-the-counter market, (v) any banking moratorium declared by federal, California or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representatives (after consultation with the Underwriters), the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Underwritten Notes.
(d) On The Representatives shall have received:
(1) the favorable opinion or opinions, dated the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel Xxxxxxx XxXxxxxxx, LLP, with respect to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing general corporate, enforceability and securities matters satisfactory law matters, in form and substance scope reasonably satisfactory to the Representative and counsel to the Underwriters.Representatives;
(f2) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx XxXxxxxxx LLP, special counsel to the Depositor Seller, TMCC and BMW Financial Servicesthe Trust, addressed with respect to the UnderwritersRegistration Statement, dated the Closing Date most recent Preliminary Prospectus delivered prior to the Time of Sale and the Prospectus, in form and substance scope reasonably satisfactory to the Representative and Representatives;
(3) a negative assurance letter of Xxxxx Xxxxx LLP, counsel to the Underwriters, with respect to (i) certain true sale the Registration Statement, the most recent Preliminary Prospectus delivered prior to the Time of Sale and nonconsolidation bankruptcy matters the Prospectus, in form and (ii) certain security interest matters.scope reasonably satisfactory to the Representatives;
(l4) The Representative shall have received an opinion the favorable opinion, dated the Closing Date, of Xxxxxxx Xxxxxxxxx X. Xxxxxx, Esq., General Counsel of TMCC and Xxxxxx LLPcounsel to the Seller, in form and scope reasonably satisfactory to the Representatives;
(5) the favorable opinion, dated the Closing Date, of [_______], special counsel to the Seller and TMCC and counsel to the Seller, in form and scope reasonably satisfactory to the Representatives and counsel for the Underwriters, regarding certain California certificate of title matters;
(6) the favorable opinion, dated the Closing Date, of [__________], counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance scope reasonably satisfactory to the Representative Representatives and counsel for the Underwriters;
(7) The favorable opinion of Xxxxxxx XxXxxxxxx LLP, special counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, in form and scope reasonably satisfactory to the effect that Representatives and counsel for the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.Underwriters, regarding certain security interest matters;
(s) Each 8) The favorable opinion of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicableXxxxxxx XxXxxxxxx LLP, dated the Closing Date, in form and scope reasonably satisfactory to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements Representatives and counsel to the Prospectus Underwriters with respect to certain bankruptcy matters; and
(9) The favorable opinion of [Xxxxxxxx, Xxxxxx & Xxxxxx, P.A.] as special Delaware counsel for the Trust, dated the Closing Date, in form and scope reasonably satisfactory to the Representatives and counsel for the Representatives. The opinions and negative assurance letters described in this Agreement Section 6(d) may contain such assumptions, qualifications and that limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Representatives.
(e) The Representatives shall have received a certificate, dated the Closing Date, signed by the President or any Vice President and a principal financial or accounting officer of (i) the Seller in which such officers shall state that, to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (iiA) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iiiB) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and in all material respects, (ivC) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission, (D) the Additional Registration Statement, if any, satisfying the requirements of Rule 462(b)(1) and Rule 462(b)(3) was filed in accordance with Rule 462(b) (including payment of the applicable filing fee in accordance with Rule 111(a) or Rule 111(b) under the Act) prior to the time the Prospectus was printed or distributed to the Underwriter and (E) subsequent to the date of this Agreement, there has been no material adverse change in or affecting the condition, financial or otherwise, earnings, business or operations of the Seller except as set forth or contemplated in the Prospectus and (ii) TMCC in which such officers shall state that, to the best of their knowledge after reasonable investigation, (A) the representations and warranties of TMCC in this Agreement are true and correct, (B) TMCC has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder in all material respects and (C) subsequent to the date of this Agreement there has been no material adverse change in or affecting the condition, financial or otherwise, earnings, business or operations of TMCC which would materially and adversely affect the performance by TMCC of its obligations under this Agreement or any of the Basic Documents.
(tf) Each Class of Notes On the Closing Date, the Representatives shall have been rated received evidence of ratings letters that assign the rating specified in ratings to the Ratings Free Writing Prospectus by the hired NRSROs Underwritten Notes specified in the Ratings Free Writing Prospectus.
(ug) The Representative Representatives shall have receivedreceived a certificate, from each dated the Closing Date, signed by an authorized officer or any Vice President of BMW Financial Servicesthe Indenture Trustee, in which such officer shall state that the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and information contained in the Transaction Documents Form T-1 for the Indenture Trustee is true and (iv) designation accurate as of incumbency of each such entityits filing with the Commission.
(vh) All requirements of Rules 15Ga-2 On the Closing Date, the Representatives and 17g-10 under counsel for the Exchange Act Underwriters shall have been furnished with such documents and will opinions as they reasonably may require for the purpose of enabling them to pass upon the issuance and sale of the Underwritten Notes as herein contemplated and related proceedings or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Seller and TMCC in connection with the issuance and sale of the Underwritten Notes as herein contemplated shall be timely complied with.
(w) The Depositor shall provide or cause to be provided in form and substance reasonably satisfactory to the Representative conformed copies of such opinions, certificates, letters Representatives and documents as counsel for the Representative or counsel to the Underwriters may reasonably requestUnderwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Toyota Auto Finance Receivables LLC)
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 1 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Initial Preliminary ProspectusProspectus and the Supplement, dated on or about the date of the Preliminary Prospectus Supplement and covering procedures performed as of the date of the Preliminary ProspectusSupplement, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Initial Preliminary Prospectus, the Supplement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (BMW Vehicle Lease Trust 2021-1)
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made by the Transferor and the Bank herein, to the accuracy of the statements of officers of Transferor and the Depositor and BMW Financial Services Bank made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor and BMW Financial Services the Bank of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On or prior to the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Representatives shall have received a fully executed copy thereof oran agreed upon procedures letter of Deloitte & Touche LLP, with respect dated on or prior to the Notes and Certificatesdate of this Agreement, a conformed copy thereof. The Transaction Documents, confirming that they are independent public accountants within the SUBI Certificate, meaning of the Notes Act and the Certificates applicable published Rules and Regulations thereunder, which letter shall be substantially in the forms form heretofore provided agreed to and otherwise in form and in substance satisfactory to the RepresentativeRepresentatives and their counsel.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereofof this Agreement; on or and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(dc) On Subsequent to the Closing Dateexecution and delivery of this Agreement none of the following shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the Representative American Stock Exchange or the over-the-counter market shall have received been suspended, limited or minimum prices shall have been established on either of such exchanges or such market by the favorable opinion Commission, by such exchange or opinions by any other regulatory body or governmental authority having jurisdiction or any suspension of intrading of any securities of the Certificate Trust, the Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of their Affiliates on any exchange or in the over-house counsel the-counter market; (ii) a banking moratorium shall have been declared by Federal or state authorities; (iii) any downgrading in the rating of any debt securities of the Certificate Trust, the Issuer, the Bank, the Transferor, First National of Nebraska, Inc. or any of their Affiliates by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or any other substantial national or international calamity or emergency which, in the judgment of the Representatives, the effect of such hostilities, escalation, declaration or other calamity or emergency makes it impractical or inadvisable to proceed with the Depositor completion and BMW Financial Services addressed sale of and payment for the Notes; and (v) any material adverse change in the financial markets for asset-backed securities in the United States if, in the Representatives' judgment, the effect of which is to make it impractical to proceed with completion of the Underwriters, dated sale of and payment for the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersNotes.
(ed) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinions, dated the Closing Date Date, of Kutak Rock LLP, special counsel to the Transferor and addressing corporatethe Bank, enforceability and securities matters satisfactory xxxxxxxxxxry in form and substance to the Representative Representatives and their counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.effect that:
(i) On The Transferor is a limited liability company in good standing, duly organized and validly existing under the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each laws of the DepositorState of Nebraska; the Bank is a national banking association in good standing, BMW Financial Services duly organized and validly existing under the UTI Beneficiary shall have furnished to laws of the Representative a certificate United States of America; and each of the Depositor, BMW Financial Services Transferor and the UTI BeneficiaryBank (each referred to in this subsection (d) as a "FNBO Entity") is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, as applicable, signed by and has full power and authority to own its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Dateproperties, to the effect that the signer of such certificate has reviewed conduct its business as described in the Registration Statement, Statement and the Prospectus, any supplements to the Prospectus enter into and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and perform its obligations under the Transaction Documents to which it is a party, are true and correctto consummate the transactions contemplated thereby.
(ii) Each of the Transaction Documents and this Agreement has been duly authorized, executed and delivered by each FNBO Entity that is a party thereto.
(iii) Neither the Depositorexecution and delivery of the Transaction Documents and this Agreement by either FNBO Entity that is party thereto nor the consummation of any of the transactions contemplated therein nor the fulfillment of the terms thereof, BMW Financial Services and the UTI Beneficiaryconflicts with or violates, results in a material breach of or constitutes a default under (A) any Requirements of Law applicable to such FNBO Entity, (B) any term or provision of any order known to such firm to be currently applicable to such FNBO Entity of any court, regulatory body, administrative agency or governmental body having jurisdiction over such FNBO Entity or (C) any term or provision of any indenture or other agreement or instrument known to such firm to which such FNBO Entity is a party or by which either of them or any of their properties are bound and, as the case may beto FNBO, which has complied with the agreements and satisfied the conditions on its part been identified to be performed or satisfied at or prior us as material to the Closing Date and business or operations of FNBO.
(iv) Except as otherwise disclosed in the Prospectus (and any supplement thereto) or the Registration Statement, there is no pending or, to the best of such firm's knowledge, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Certificate Trust, the Issuer, the Collateral Certificate, the Notes or any of the Transaction Documents or any of the transactions contemplated therein with respect to a FNBO Entity which, in the case of any such action, suit or proceeding if adversely determined, would have a material adverse effect on the Depositor Notes, the Collateral Certificate, the Certificate Trust or the Issuer or upon the ability of either FNBO Entity to perform its obligations under the Transaction Documents.
(v) Each of the Transaction Documents to which an FNBO Entity is a party constitutes the legal, valid and BMW Financial Services onlybinding agreement of such Person under the laws of Nebraska, enforceable against each such Person in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C.Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC.
(vi) This Agreement constitutes the legal, valid and binding obligation of the Transferor and the Bank under the laws of the State of New York, enforceable against the Transferor and the Bank in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(vii) The Notes are in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified in this Agreement, they will be validly issued and outstanding, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and will be entitled to the benefits of the Indenture, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(viii) The Collateral Certificate is in due and proper form and when executed, authenticated and delivered as specified in the Pooling and Servicing Agreement, and when delivered against payment of the consideration specified therein it will be validly issued and outstanding, will constitute legal, valid and binding obligations of the Certificate Trust, enforceable against the Certificate Trust in accordance with its terms and will be entitled to the benefits of the Pooling and Servicing Agreement, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(ix) The Registration Statement has become effective under the Act, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b). To the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are threatened or contemplated by the Commission.
(tx) Each Class The statements in the Base Prospectus under the headings "Risk Factors -- If a conservator or receiver were appointed for First National Bank of Notes shall Omaha, or if we become a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Structural Summary -- Tax Status" and " -- ERISA Considerations" to the extent that they constitute matters of law or legal conclusions with respect thereto, have been rated the rating specified reviewed by us and are correct in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectusall material respects.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (First Bankcard Master Credit Card Trust)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be Firm Shares on the Closing Date and the Option Shares on any Option Closing Date are subject to the accuracy fulfillment of each of the representations and warranties made herein, following conditions on or prior to the accuracy of the statements of officers of the Depositor Closing Date and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedenteach Option Closing Date:
(a) On All the representations and warranties of the Company contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable. The Company shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all respects with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both If the Registration Statement is not effective at or before the date hereof, time of the execution and on or before the Closing Datedelivery of this Agreement, the Representative Registration Statement shall have received three lettersbecome effective (or, one relating to the 2021if a post-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication effective amendment is required to be filed with pursuant to Rule 430A under the Commission Act, such post-effective amendment shall have become effective) not later than 9:30 A.M., New York City time, on the date of this Agreement or such later time as you may approve in writing or, if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been filed with as required hereby, if necessary; and at the Commission in accordance with the Rules Closing Date and Regulations and Section 7(h) hereof; on or prior to the each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before or, to the best knowledge of the Depositor Underwriters or BMW Financial Servicesthe Company, shall be contemplated threatened by the Commission; every request for additional information on the part of the Commission shall have been complied with to the Underwriters' satisfaction; no stop order suspending the sale of the Shares in any jurisdiction referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) The Shares shall be eligible for sale under the Blue Sky laws of such states as shall have been specified by the Representative.
(d) On The legality and sufficiency of the Closing Dateauthorization, issuance and sale or transfer and sale of the Shares hereunder, the Representative validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have received been approved by counsel for the favorable Underwriters exercising reasonable judgment, and no Underwriter shall have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of material fact, or omits to state a fact that in your opinion is material and is required to be stated therein or opinions of in-house counsel is necessary to make the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any material change, or any material development involving a prospective change, in or affecting particularly the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion business or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none properties of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI BeneficiarySubsidiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated that, in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties judgment of the DepositorRepresentative, BMW Financial Services makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby.
(f) You shall have received an agreement (the "Lock-Up Agreement") from each of the officers and directors of the UTI BeneficiaryCompany and from Capital Bancorp Ltd., whereby each agrees that for a period of 180 days from the date this Agreement becomes effective, they will not, without the prior written consent of the Representative (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that this clause shall not apply to transfers of Common Stock to partnerships, limited liability companies, trusts or similar entities organized for the exclusive benefit of family members of the officers and directors of the Company for financial and estate planning purposes so long as any transferee that receives Common Stock as a result of such transfer shall agree upon such transfer to be bound by the terms of this paragraph and shall be capable of being so bound.
(g) You shall have received an opinion (satisfactory to you and your counsel) dated the Closing Date or the Option Closing Date, as the case may be, of Snelx & Xilmxx X.X.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated and is a validly existing corporation in this Agreement good standing under the laws of the State of Arizona and is duly registered as a bank holding company under the BHC Act, with all necessary corporate power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement and the Transaction Documents Prospectus; the Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which it is its ownership or lease of real property or the conduct of its business makes such qualification necessary and in which the failure to so qualify could have a party, are true and correct, Material Adverse Effect;
(ii) an opinion to the same general effect as clause (i) of this subparagraph (g) in respect of each Subsidiary;
(iii) the DepositorCompany has all necessary corporate power and authority to enter into and perform this Agreement, BMW Financial Services and the UTI Beneficiaryperformance of the Company's obligations hereunder has been duly authorized by all necessary corporate action; this Agreement has been duly executed and delivered by and on behalf of the Company, and, assuming due authorization, execution and delivery of this Agreement by the Underwriters, constitutes a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as enforceability of the case same may bebe limited by bankruptcy, has complied insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equity principles; no approval, consent, order, authorization, designation, declaration or filing by or with the agreements and satisfied the conditions on its part to be performed any regulatory, administrative or satisfied at or prior other governmental body or, to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.best
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations obligation of the ------------------------------------------------- Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made by or on behalf of Spiegel, the Seller, SAC and the Bank herein, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Bank made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Bank of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect or prior to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Dateof this Agreement, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectusletter, dated on or about the date of the Preliminary Prospectus and covering procedures performed as this Agreement, of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, confirming that they are independent certified public accountants, addressed to accountants within the Underwritersmeaning of the Act and the applicable published Rules and Regulations thereunder, substantially in the form of the drafts heretofore agreed to which the Representative has agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)its counsel.
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereofof this Agreement; on or and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Seller or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement none of the following shall have occurred: (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of Spiegel, the Seller or the Bank which, in the judgment of the Underwriters, make it impractical or inadvisable to proceed with the public offering or delivery of the Notes on the terms and in the manner contemplated in the Prospectus, (ii) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (iii) a banking moratorium shall have been declared by Federal or state authorities; (iv) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; (v) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets of the United States shall be such) as to make it, in the judgment of the Underwriters, impractical or inadvisable to proceed with the public offering or delivery of the Notes on the terms and in the manner contemplated in the Prospectus or (vi) any material adverse change in the financial markets for asset- backed securities in the United States if, in the judgment of the Underwriters, the effect of which is to make it impractical or inadvisable to proceed with the public offering or delivery of the Notes on the terms and in the manner contemplated in the Prospectus.
(d) On As of the Closing Date, the Representative Swap shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and be in form and substance satisfactory to the Representative and counsel to the Underwritersplace.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date Date, of Xxxxx, Xxxxx and addressing corporateXxxxx, enforceability special counsel for the Seller, SAC and securities matters the Bank, satisfactory in form and substance to the Representative and its counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.effect that:
(i) On Spiegel is a corporation in good standing, duly organized and validly existing under the Closing Datelaws of the State of Delaware; the Seller is a corporation in good standing, duly organized and validly existing under the laws of the State of Delaware; SAC is a corporation in good standing, duly organized and validly existing under the laws of the State of Delaware; the Bank is a national banking association in good standing, duly organized and validly existing under the laws of the United States of America; and each of Spiegel, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLPSeller, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust SAC and the Trust, shall have delivered an opinion addressed Bank (each collectively referred to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
this subsection (kd) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (ias a "Spiegel Entity") certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of authorized by its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each incorporation -------------- or articles of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiaryassociation, as the case may be, to transact the business in which it is engaged and none of Seller, SAC or the Bank is required to qualify or register as a foreign corporation, in any state in order to conduct its business as presently conducted, except where the failure to so qualify or register would not have a material adverse effect upon the Noteholders;
(ii) Each Spiegel Entity has full corporate power and authority to enter into and perform its obligations under each Transaction Document and this Agreement and the Transaction Documents to which it is a party, are true and correct, ;
(iii) Each Spiegel Entity (except Spiegel) has the Depositorcorporate power and authority and legal right to acquire, BMW Financial Services own and transfer, and, in the UTI Beneficiarycase of the Bank, to service, the Receivables;
(iv) Each of the Transaction Documents and this Agreement has been duly authorized, executed and delivered by each Spiegel Entity that is a party thereto;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for (a) the execution and delivery by any Spiegel Entity of any Transaction Document or this Agreement to which such Spiegel Entity is a party or the performance by such Spiegel Entity of its obligations thereunder, or (b) the issuance and sale of the Notes;
(vi) Neither the execution and delivery of the Transaction Documents and this Agreement by any Spiegel Entity that is party thereto nor the performance by such Spiegel Entity of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon such Spiegel Entity or its property, or conflict with, or result in a breach or violation of any term or provision, or result in a default under any of the terms and provisions, of such Spiegel Entity's certificate of incorporation or articles of association, as the case may be, has complied with the agreements and satisfied the conditions on its part or by-laws or any material indenture, loan agreement or other material agreement known to be performed such counsel to which such Spiegel Entity is a party or satisfied at by which such Spiegel Entity is bound;
(vii) There is no legal or prior governmental proceeding pending to the Closing Date and (iv) (which any Spiegel Entity is a party or to which any Spiegel Entity is subject which, individually or in the case aggregate (a) would have a material adverse effect on the ability of such Spiegel Entity to perform its obligations under the Transaction Documents or this Agreement, (b) assert the invalidity of any Transaction Document, this Agreement, the Seller Interest or the Collateral Certificate, (c) seek to prevent the issuance, sale or delivery of the Depositor Notes or any of the transactions contemplated by the Transaction Documents or this Agreement or (d) seek to adversely affect the federal income tax consequences of the Notes; and
(viii) The Registration Statement has become effective under the Act and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the CommissionAct.
(tix) Each Class of Notes shall have been rated the rating specified Transaction Documents to which the Seller, SAC or the Bank is a party constitutes the legal, valid and binding agreement of the Seller, SAC and the Bank, as the case may be, under the laws of Illinois, enforceable against each such Person in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the Ratings Free Writing Prospectus rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the hired NRSROs specified unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the Ratings Free Writing Prospectusoccurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(ux) The Representative shall have receivedThis Agreement constitutes the legal, from each valid and binding obligation of BMW Financial Services, the UTI Beneficiary Spiegel and the DepositorSeller under the laws of the State of Illinois, a certificate executed enforceable against Spiegel and the Seller in accordance with its terms, subject to (w) limitations imposed by a secretary bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or assistant secretary thereof other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which shall may be attached certified copies limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of the: (i) certificate provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents any event of default; and (ivz) designation general principles of incumbency equity, including, without limitation, concepts of each materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such entityenforceability is considered in a proceeding in equity or at law.
(vxi) All requirements of Rules 15Ga-2 and 17g-10 under When the Exchange Act Notes have been duly executed and delivered by the Issuer, authenticated by the Indenture Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with this Agreement, they will be validly issued and outstanding, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and will be timely complied withentitled to the benefits of the Indenture, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(wxii) The Depositor shall provide statements in the Base Prospectus under the headings "Risk Factors--If a conservator or cause to be provided receiver were appointed for First Consumers National Bank, or if we or Spiegel Acceptance became a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Structural Summary--Tax Status" and "--ERISA Considerations" to the Representative conformed copies extent that they constitute matters of such opinionslaw or legal conclusions with respect thereto, certificates, letters have been reviewed by us and documents as the Representative or counsel to the Underwriters may reasonably requestare correct in all material respects.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made by the Transferor and the Bank herein, to the accuracy of the statements of officers of Transferor and the Depositor and BMW Financial Services Bank made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor and BMW Financial Services the Bank of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On or prior to the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Representatives shall have received a fully executed copy thereof oran agreed upon procedures letter of Deloitte & Touche LLP, with respect dated on or prior to the Notes and Certificatesdate of this Agreement, a conformed copy thereof. The Transaction Documents, confirming that they are independent public accountants within the SUBI Certificate, meaning of the Notes Act and the Certificates applicable published Rules and Regulations thereunder, which letter shall be substantially in the forms form heretofore provided agreed to and otherwise in form and in substance satisfactory to the RepresentativeRepresentatives and their counsel.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereofof this Agreement; on or and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor or BMW Financial Servicesthe Representatives, shall be contemplated by the Commission.
(dc) On Subsequent to the Closing Dateexecution and delivery of this Agreement none of the following shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the Representative American Stock Exchange or the over-the-counter market shall have received been suspended, limited or minimum prices shall have been established on either of such exchanges or such market by the favorable opinion Commission, by such exchange or opinions by any other regulatory body or governmental authority having jurisdiction or any suspension of intrading of any securities of the Certificate Trust, the Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of their Affiliates on any exchange or in the over-house counsel the-counter market; (ii) a banking moratorium shall have been declared by Federal or state authorities; (iii) any downgrading in the rating of any debt securities of the Certificate Trust, the Issuer, the Bank, the Transferor, First National of Nebraska, Inc. or any of their Affiliates by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or any other substantial national or international calamity or emergency which, in the judgment of the Representatives, the effect of such hostilities, escalation, declaration or other calamity or emergency makes it impractical or inadvisable to proceed with the Depositor completion and BMW Financial Services addressed sale of and payment for the Notes; and (v) any material adverse change in the financial markets for asset-backed securities in the United States if, in the Representatives' judgment, the effect of which is to make it impractical to proceed with completion of the Underwriters, dated sale of and payment for the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersNotes.
(ed) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinions, dated the Closing Date Date, of Xxxxx Xxxx LLP, special counsel to the Transferor and addressing corporatethe Bank, enforceability and securities matters satisfactory in form and substance to the Representative Representatives and their counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.effect that:
(i) On The Transferor is a limited liability company in good standing, duly organized and validly existing under the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each laws of the DepositorState of Nebraska; the Bank is a national banking association in good standing, BMW Financial Services duly organized and validly existing under the UTI Beneficiary shall have furnished to laws of the Representative a certificate United States of America; and each of the Depositor, BMW Financial Services Transferor and the UTI BeneficiaryBank (each referred to in this subsection (d) as a "FNBO Entity") is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, as applicable, signed by and has full power and authority to own its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Dateproperties, to the effect that the signer of such certificate has reviewed conduct its business as described in the Registration Statement, Statement and the Prospectus, any supplements to the Prospectus enter into and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and perform its obligations under the Transaction Documents to which it is a party, are true and correctto consummate the transactions contemplated thereby.
(ii) Each of the Transaction Documents and this Agreement has been duly authorized, executed and delivered by each FNBO Entity that is a party thereto.
(iii) Neither the Depositorexecution and delivery of the Transaction Documents and this Agreement by either FNBO Entity that is party thereto nor the consummation of any of the transactions contemplated therein nor the fulfillment of the terms thereof, BMW Financial Services and the UTI Beneficiaryconflicts with or violates, results in a material breach of or constitutes a default under (A) any Requirements of Law applicable to such FNBO Entity, (B) any term or provision of any order known to such firm to be currently applicable to such FNBO Entity of any court, regulatory body, administrative agency or governmental body having jurisdiction over such FNBO Entity or (C) any term or provision of any indenture or other agreement or instrument known to such firm to which such FNBO Entity is a party or by which either of them or any of their properties are bound and, as the case may beto FNBO, which has complied with the agreements and satisfied the conditions on its part been identified to be performed or satisfied at or prior us as material to the Closing Date and business or operations of FNBO.
(iv) Except as otherwise disclosed in the Prospectus (and any supplement thereto) or the Registration Statement, there is no pending or, to the best of such firm's knowledge, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Certificate Trust, the Issuer, the Collateral Certificate, the Notes or any of the Transaction Documents or any of the transactions contemplated therein with respect to an FNBO Entity which, in the case of any such action, suit or proceeding if adversely determined, would have a material adverse effect on the Depositor Notes, the Collateral Certificate, the Certificate Trust or the Issuer or upon the ability of either FNBO Entity to perform its obligations under the Transaction Documents.
(v) Each of the Transaction Documents to which an FNBO Entity is a party constitutes the legal, valid and BMW Financial Services onlybinding agreement of such Person under the laws of Nebraska, enforceable against each such Person in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. ss.1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC.
(vi) This Agreement constitutes the legal, valid and binding obligation of the Transferor and the Bank under the laws of the State of New York, enforceable against the Transferor and the Bank in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(vii) The Notes are in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified in this Agreement, they will be validly issued and outstanding, will constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and will be entitled to the benefits of the Indenture, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC.
(viii) The Collateral Certificate is in due and proper form, validly issued and outstanding and constitutes the legal, valid and binding obligation of the Certificate Trust, enforceable against the Certificate Trust in accordance with its terms and is entitled to the benefits of the Pooling and Servicing Agreement, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy.
(ix) The Registration Statement has become effective under the Act, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b). To the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are threatened or contemplated by the Commission.
(tx) Each Class The statements in the Base Prospectus under the headings "Risk Factors--If a conservator or receiver were appointed for First National Bank of Notes shall Omaha, or if we become a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Structural Summary--Tax Status" and "--ERISA Considerations" to the extent that they constitute matters of law or legal conclusions with respect thereto, have been rated the rating specified reviewed by us and are correct in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectusall material respects.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (First Bankcard Master Credit Card Trust)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of the Seller and the Servicer herein on the date hereof and at the Closing Date, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On At the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, time this Agreement is executed and delivered by the parties thereto, shall be in full force Seller and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, Xxxxx & Young LLP shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Closing Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to time of effectiveness of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectuses and the Final Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers’ certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the The representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Each Class Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of Notes which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) The representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been rated issued and no proceedings for that purpose have been instituted or, to the rating best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co., Ltd., Nissan North America, Inc. (“NNA”) or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Closing Date, Xxxx Xxxx, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel’s written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(g) At the Closing Date, Winston & Xxxxxx LLP, special counsel to the Seller and the Servicer, shall have furnished to the Representative their written opinion, dated as of the Closing Date, with respect to general corporate matters, the validity of the Notes, the Registration Statement, the Prospectus Supplement and the Base Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement, the Prospectus Supplement and the Base Prospectus, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(h) At the Closing Date, Winston & Xxxxxx LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have furnished their written opinion, dated the Closing Date, with respect to the characterization of the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(i) [RESERVED]
(j) At the Closing Date, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion, dated the Closing Date, with respect to the validity of the Notes and such other related matters as the Representative shall require, in form and substance reasonably satisfactory to the Underwriters, and the Seller shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(k) At the Closing Date, Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinion addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(l) At the Closing Date, Xxxxxxxx, Xxxxx & Xxxxxx LLP, counsel to Citibank, N.A., as Indenture Trustee and Securities Intermediary, shall have furnished their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(m) The Representative shall have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Seller or the Servicer, as applicable, contained in the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct in all material respects and that the Seller or the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date in all material respects.
(n) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing ProspectusProspectuses.
(uo) The Representative On or prior to the Closing Date, the Seller shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of such opinions, certificates, letters further certificates and documents as the Representative or shall reasonably have required. (p) At the Closing Date, the Representative shall have received an opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee counsel to the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters may reasonably requestand counsel to the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables 2011-B Owner Trust)
Conditions of the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties made on the part of each of the Issuer, Interstar and the Trust Manager herein, to the accuracy of the statements of officers of each of the Depositor Issuer, Interstar and BMW Financial Services the Trust Manager made pursuant hereto when madeto the provisions hereof, to the performance by each of the Depositor Issuer, Interstar and BMW Financial Services the Trust Manager of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, You shall have received evidence satisfactory to you that each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have Documents has been duly authorized, executed and delivered by the respective parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect that all conditions precedent to the Transaction Documents other than the issue of the Offered Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativehave been satisfied.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative You shall have received three lettersevidence satisfactory to you that on the Closing Date the Class A3 Notes, one relating the Class A4 Notes and the Class B2 Notes shall have been issued.
(c) You shall have received evidence satisfactory to you that all the 2021-2 Leases dated steps or conditions required by the Series Notice for the purchase by the Issuer from the Seller of the Loans and Related Rights to be acquired from the Seller pursuant thereto have been taken or satisfied, as of a date at least five business days the case may be.
(d) The Registration Statement shall have become effective on or prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication if a post-effective amendment is required to be filed with under the Commission Securities Act, such post-effective amendment shall have been filed with become effective, not later than 5:00 p.m., New York City time, on the Commission in accordance with the Rules date hereof or on such later date to which you have consented; and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission. The Prospectus, including all price-related information previously omitted from the prospectus which formed a part of the Registration Statement at the time it became effective, in accordance with Rule 430A, shall have been instituted or, transmitted to the knowledge of Commission for filing pursuant to Rule 424(b) within the Depositor or BMW Financial Services, shall be contemplated applicable time period prescribed for such filing by the Commissionrules and regulations under the Securities Act and in accordance with Section 5(b)(i) hereof; and prior to the Closing Date the Trust Manager shall have provided evidence satisfactory to you of such timely filing, and all requests for additional information shall have been complied with to your satisfaction.
(de) On The Australian Stock Exchange having agreed to list the Notes, subject only to the issue of the global Notes or you shall be satisfied that such listing will be granted shortly after the Closing Date, .
(f) On or before the Representative Closing Date you shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwritersopinions, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersyou, dated the Closing Date and addressing corporateof:
(i) Xxxxxx, enforceability and securities matters satisfactory in form and substance to the Representative and counsel Xxxxxxxxxx & Xxxxxxxxx, legal advisers to the Underwriters.;
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) Mayer, Brown, Xxxx & Maw, legal advisers to Interstar and the Trust is structured so Manager;
(iii) Allens Xxxxxx Xxxxxxxx, legal advisers to Interstar and the Trust Manager;
(iv) Mallesons Xxxxxxx Xxxxxx, legal advisers to the Issuer;
(v) legal advisers to the Swap Party;
(vi) Xxxxx, Xxxxxx & Xxxxxx, XX, legal advisers to the Note Trustee;
(vii) KPMG, tax advisers to the Trust Manager; and such other documents, opinions and certificates as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Actyou may reasonably require.
(g) The Representative You shall have received a negative assurance letter or letters from Xxxxxx, Xxxxx & Bockius LLP, each counsel delivering any written opinion to any Rating Agency in connection with the Depositor, BMW Financial Services and transactions described in this Agreement allowing the Trust, Underwriters to rely on such opinion as if it were addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing DateDate the representations and warranties of the Issuer, Interstar and the Trust Manager in this Agreement shall be true, accurate and correct at, and as if made on, the Representative Closing Date; and each of the Issuer, Interstar and the Trust Manager shall have performed all of their respective obligations under this Agreement to be performed on or before the Closing Date.
(i) Subsequent to the execution and delivery of this Agreement, there shall not have occurred:
(i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of any of the Issuer, Interstar, the Trust Manager or any Swap Party and their respective subsidiaries, in each case, taken as one enterprise, which, in the sole judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Notes;
(ii) any downgrading in the rating of any debt securities of any of Interstar, the Trust Manager, the Issuer or any Swap Party by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) of the Commission promulgated under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of the Class A2 Notes or the Class B1 Notes or any debt securities of any of Interstar, the Trust Manager, the Issuer or any Swap Party (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating);
(iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, the Australian Stock Exchange or any other exchange on which the Offered Notes are listed, or any setting of minimum prices for trading on any such exchange, or any suspension of trading of any securities of any of Interstar, the Trust Manager, the Issuer or any Swap Party on any exchange or in the over-the-counter market;
(iv) any material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to the Clearstream, Luxembourg or the Euroclear systems in Europe;
(v) any banking moratorium declared by U.S. Federal, New York, United Kingdom or Australian authorities; or
(vi) any outbreak or escalation of major hostilities in which the United States, the United Kingdom or Australia is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the sole judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Notes.
(j) You shall have received evidence satisfactory to you that the favorable opinion Class A2 Notes shall be rated AAA by S&P and Aaa by Moody's and the Class B Notes having been assigned a rating of XxxxxxxxAA- by S&P and no such rating having been downgraded and no Notes having been placed on "credit watch" and there having occurred no downgrade, Xxxxxx & Fingernor any notice having been given of any intended or potential downgrading, P.A.or any review or possible change which does not indicate the direction of any such change, special Delaware counsel for in the Depositor and BMW Financial Services, addressed rating accorded to any other debt securities of the Underwriters, Issuer by any Rating Agency.
(k) You shall have received a solvency certificate of the Seller dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matterssigned by a duly authorized officer.
(l) The Representative Underwriters shall have received an opinion satisfactory evidence that payment of Xxxxxxx the Commissions and Xxxxxx LLP, counsel the expenses referred to the Indenture Trustee, addressed to the Underwriters, dated in Section 10 will be made on the Closing Date and satisfactory in form and substance to the Representative and counsel to the UnderwritersDate.
(m) On the Closing Date, the Representative You shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositormanaging director, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate director or any chief general manager of each of the Depositor, BMW Financial Services Interstar and the UTI Beneficiary, Trust Manager and (as applicable, signed by its Chairman to paragraphs (i) and (ii) below only) of an authorized officer of the BoardIssuer in which such officers, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, shall state that:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, such entity in this Agreement and the Transaction Documents to which it is a party, are true and correct, ;
(iiiii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, such entity has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date and Date;
(iviii) (in the case of the Depositor and BMW Financial Services only) that Trust Manager, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and
(iv) subsequent to the date of the most recent financial statements supplied by Interstar to the Underwriters or the Representative on behalf of the Underwriters, there has been no material adverse change, nor any development or event involving a prospective material adverse change in the condition (financial or other), business, properties or results of operations of such entity and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate.
(tn) Each Class of Notes You shall have been rated received a letter, dated the rating Closing Date, of KPMG confirming that they are independent public accountants within the standards established by the American Institute of Certified Public Accountants and stating to the effect that they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of Interstar and its subsidiaries and affiliates subject to the internal controls of such parties' accounting system or are derived directly from such records by analysis or computation or from the collateral tape containing the description of the Loans and Related Rights) with the results obtained from inquiries, a reading of such general accounting records and collateral tape and other procedures specified in the Ratings Free Writing Prospectus by the hired NRSROs such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in the Ratings Free Writing Prospectussuch letter.
(uo) The Representative shall have receivedmay, from each at its discretion and upon such terms as it thinks fit, waive compliance with the whole or any part of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: this Section 6 (iother than Sections 6(a) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityb)).
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Interstar Securitisation Management Pty LTD)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(db) On Prior to the Closing Date, the Representative rating assigned by Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services to any debt securities of the Company as of the date of this Agreement shall not have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersbeen lowered.
(ec) The Representative Since the respective most recent dates as of which information is given in the Prospectus and up to the Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Prospectus, and, since such dates and up to the Closing Date, there shall not have been any material transaction entered into by the Company other than transactions contemplated by the Prospectus and transactions in the ordinary course of business, the effect of which in your judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated by the Prospectus.
(d) You shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx Xxxxxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)Company, dated the Closing Date, to the effect that that:
(i) The Company has been duly organized and is validly existing as a limited partnership in good standing under the Underwriters may rely on each such opinion laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the same extent as though such opinion was addressed Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Registration Statement has become effective under the Depositor1933 Act, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositorand, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her the knowledge after reasonable investigationof such counsel, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the 1933 Act.
(iii) The Registration Statement as of the date of effectiveness under the 1933 Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations; and nothing has come to their attention that would lead them to believe that the Registration Statement as of the date of effectiveness under the 1933 Act (or if an amendment to such Registration Statement or an annual report on Form 10-K has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission and at the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion may state that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement and the Prospectus except as otherwise expressly provided in such opinion and do not express any opinion or belief as to the financial statements or other financial data contained in or incorporated by reference into the Registration Statement and the Prospectus, the statement of the eligibility and qualification of the Trustee or as to the information set forth in the Prospectus under the caption "Description of the % Notes due --Book-Entry Only Issuance--The Depository Trust Company."
(iv) The statements made in the Prospectus under the captions "Description of the Notes" and "Description of the % Notes due ," insofar as they purport to summarize provisions of documents specifically referred to therein, fairly present the information called for with respect thereto by Form S-3.
(v) This Agreement has been duly authorized, executed and delivered by the Company.
(vi) The performance by the Company of this Agreement and the Indenture will not contravene any of the provisions of the Limited Partnership Agreement of the Company, nor will such performance contravene any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which it or its property is bound or to which its property or assets is subject which affects in a material way the Company's ability to perform its obligations under this Agreement and the Indenture.
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the 1933 Act and the Trust Indenture Act of 1939 and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939 and, assuming the due authorization, execution and delivery thereof by The Chase Manhattan Bank, as Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ix) The Notes have been duly authorized and executed by the Company and, when authenticated by The Chase Manhattan Bank, as Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the qualifications that the enforceability of the Company's obligations under the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. In rendering the foregoing opinion or opinions, Xxxxx Xxxxxxxxxx LLP may state that such opinion or opinions are limited to the federal laws of the United States, the laws of the State of New York and the Revised Uniform Limited Partnership Act of the State of Delaware, and that they are expressing no opinion as to the effect of the laws of any other jurisdiction. In addition, such counsel may state that they have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by them to be responsible and that the signatures on all documents examined by them are genuine, assumptions which such counsel have not independently verified.
(e) You shall have received an opinion, dated the Closing Date, of Xxxxxx X. Xxxxx, Esq. to the effect that:
(i) The Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole.
(ii) The descriptions in the Registration Statement and the Prospectus of legal or governmental proceedings are accurate and fairly present the information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its subsidiaries or any of their respective properties that would be required to be disclosed in the Prospectus and is not so disclosed. Such counsel shall also state that nothing has come to his attention that has caused him to believe that the Registration Statement as of the date of effectiveness under the 1933 Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement and the Prospectus and does not express any opinion or belief as to the financial statements or other financial data contained in or incorporated by reference into the Registration Statement and the Prospectus, the statement of the eligibility and qualification of the Trustee or as to the information set forth in the Prospectus under the caption "Description of the % Notes due --Book-Entry Only Issuance--The Depository Trust Company." In rendering the foregoing opinion, such counsel may rely, to the extent recited therein, upon opinions of local counsel. Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by him to be responsible.
(f) You shall have received the opinion and letter of , counsel for the Underwriters, dated the Closing Date, with respect to the organization of the Company, the validity of the Notes, the Registration Statement and the Prospectus, as amended or supplemented, and such other related matters as you may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) On or after the date hereof, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally or of the securities of Duke Energy Corporation, Duke Capital Corporation or the Company on the New York Stock Exchange; or (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; or (iii) the outbreak or material escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war if the effect of any such event specified in this subsection (g) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus. In such event there shall be no liability on the part of any party to any other party except as otherwise provided in Section 7 hereof and except for the expenses to be borne by the Company as provided in Section 5(g) hereof.
(h) You shall have received a certificate of the Chairman, the President, any Vice President, the Secretary or an Assistant Secretary and any financial or accounting officer of the Company, dated the Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct as of the Closing Date, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that the conditions specified in Section 6(b) and Section 6(c) have been satisfied, and that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission.
(ti) Each Class On the date of Notes this Agreement, you shall have been rated received a letter dated the rating specified date hereof, in form and substance satisfactory to you, from the Ratings Free Writing Prospectus Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the hired NRSROs specified in the Ratings Free Writing Prospectus.
(uj) The Representative At the Closing Date you shall have receivedreceived from the Company's independent public accountants a letter, from each of BMW Financial Servicesdated the Closing Date, to the UTI Beneficiary and effect that such accountants reaffirm the Depositor, a certificate executed by a secretary or assistant secretary thereof statements made in the letter furnished pursuant to which shall be attached certified copies of the: paragraph (i) certificate of formationthis Section 6, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing except that the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will specified date referred to shall be timely complied with.
(w) The Depositor shall provide or cause to be provided a date not more than three business days prior to the Representative Closing Date. The Company will furnish you with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may you reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Texas Eastern Transmission Lp)
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes Certificates will be subject to the accuracy of the respective representations and warranties made on the part of the Seller and Fleetwood Credit herein, to the accuracy of the statements of the respective officers of the Depositor Seller and BMW Financial Services Fleexxxxx Xxxdit made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services Fleexxxxx Xxxdit of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes The Underwriters and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Seller shall have received a fully executed copy thereof orfrom Coopxxx & Xybrxxx X.X.P., with respect to independent public accountants ("Coopers & Lybrxxx") (i) on the Notes and Certificatesdate of this Agreement, a conformed copy thereof. The Transaction Documentsletter, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriterssuch date, substantially in the form of the drafts draft to which the Representative has agreed Underwriters have previously agreed, and otherwise substantially (ii) on the Closing Date, a letter, dated as of the Closing Date, updating the letter referred to in clause (i) above, which letters shall in each case be in form and substance reasonably satisfactory to the Representative Underwriters and counsel to for the Underwriters; provided, that .
(b) If the Underwriters shall have received the Accountant’s Due Diligence Report at or Effective Time is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the ProspectusEffective Time shall have occurred not later than 10:00 P.M., each Free Writing Prospectus listed New York City time, on Schedule III hereto the date of this Agreement or approved in writing such later date as shall have been consented to by the Depositor Underwriters. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.instituted
Appears in 1 contract
Samples: Underwriting Agreement (Fleetwood Credit Receivables Corp)
Conditions of the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Class A Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Transferor, XXX X.X. and World Omni herein, to the accuracy of the statements of the respective officers of the Depositor Transferor, XXX X.X. and BMW Financial Services World Omni made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor, XXX X.X. and BMW Financial Services World Omni of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On (i) the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI CertificateRepresentative, the Notes XXX X.X. and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Transferor shall have received a fully executed copy letter or letters, dated the date of delivery thereof or(which, with respect if the Effective Time is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as amendment or post-effective amendment to the registration statement to be filed shortly prior to the Effective Time), of Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") confirming that they are independent public accountants within the meaning of the date of Act and the Preliminary Prospectus, Rules and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the draft or drafts to which the Representative has previously agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that for the Underwriters and (ii) on the Closing Date, the Representative, XXX X.X. and the Transferor shall have received a letter or letters, dated as of the Accountant’s Due Diligence Report at or Closing Date, from Xxxxxx Xxxxxxxx, updating each letter delivered pursuant to clause (i) above, in form and substance satisfactory to the Representative and counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusdate of this Agreement, the ProspectusEffective Time shall be the date of execution and delivery of this Agreement, each Free Writing Prospectus listed on Schedule III hereto or approved in writing the next business day after the date of this Agreement or such later date as shall have been consented to by the Depositor Representative. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor, ALF L.P., World Omni or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion certificates of the President, any Vice President or opinions the Treasurer or any Assistant Treasurer of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none the XXXX XX General Partner on behalf of the DepositorTransferor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes ALF L.P. General Partner on behalf of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters XXX X.X. and (iiiii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLPWorld Omni, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and each dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestin which such officer shall state, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course case of business(A) the Transferor and ALF L.P., except as set forth in or contemplated in the Prospectus that (exclusive of any supplement thereto), (ii1) the representations and warranties of the Depositor, BMW Financial Services and the UTI BeneficiaryTransferor or ALF L.P., as the case may be, in this Agreement and the Transaction Documents each Basic Document to which it is a party, party and in this Agreement are true and correct, (iii2) to the Depositorbest knowledge of such officer after reasonable investigation, BMW Financial Services and the UTI BeneficiaryTransferor or ALF L.P., as the case may be, has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
Commission and (t3) Each Class subsequent to the date of Notes shall have this Agreement, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transferor or ALF L.P., as the case may be, except as set forth in or contemplated by the hired NRSROs specified Prospectus and (B) World Omni, that (1) the representations and warranties of World Omni in each Basic Document to which it is a party and in this Agreement are true and correct, (2) to the best knowledge of such officer after reasonable investigation, World Omni has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and (3) subsequent to the date of this Agreement, there has been no material adverse change in the Ratings Free Writing condition, financial or otherwise, or in the earnings, business affairs or business prospects of World Xxxx except as set forth in or contemplated by the Prospectus.
(ud) The Representative shall have received a certificate, dated the Closing Date, of a Vice President or another duly authorized officer of the Insurer, satisfactory in form and substance to the Representative and counsel to the Underwriters, substantially to the effect that, among other things, (i) the information provided by the Insurer for use in the Registration Statement and the Prospectus is true and correct in all material respects and (ii) since the date of the financial statements of the Insurer included in the Prospectus, there has been no change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Insurer that would have a material adverse effect on the ability of the Insurer to meet its obligations under the Residual Value Insurance Policy.
(e) The Representative shall have received:
(1) The favorable opinions of (A) Xxxxxxxx & Xxxxxxxx, from counsel to the Transferor, XXX X.X. and World Omni, (B) Hand Xxxxxxxx, L.L.C., special Alabama counsel to the Transferor, XXX X.X. and World Omni, (C) English, XxXxxxxxx & X'Xxxxx, P.A., special Florida counsel to the Transferor, XXX X.X. and World Omni, (D) XxXxxxxxx, Xxxx & Xxxxx, special Illinois and New York counsel to the Transferor, XXX X.X. and World Omni, (E) Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Transferor, XXX X.X. and World Omni, (F) Xxxxxxx & Xxxxxxx L.L.C., special Georgia counsel to the Transferor, XXX X.X. and World Omni and (G) Xxxxx Xxxxx Mulliss & Xxxxx, special North Carolina counsel to the Transferor, XXX X.X. and World Omni, in each of BMW Financial Servicescase dated the Closing Date and satisfactory in form and substance to the Representative and counsel for the Underwriters, and, in the UTI Beneficiary and aggregate substantially to the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: effect that:
(i) certificate World Omni has been incorporated under the Florida General Corporation Act, is current in the payment of formationfees due to the Florida Department of State and its status is active; World Omni has corporate power and authority to own, lease and operate its properties, to conduct its business as presently conducted and to enter into and perform its obligations under this Agreement, each Partnership Agreement and each Basic Document to which it is a party; to the best of their knowledge, World Omni is duly qualified as a foreign corporation to transact business and is in good standing in Alabama, Georgia, North Carolina and South Carolina; and, to the best of their knowledge, all of the issued and outstanding membership interest of XXXX LLC and ALF LLC is owned by World Omni, free and clear of Liens.
(ii) Each of XXXX LLC and ALF LLC has been duly incorporated and is validly existing as a limited liability company agreement or in good standing under the laws of the State of Delaware, with power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement and to enter into and perform its obligations under the related Partnership Agreement and each Basic Document to which it is a party; to the best of such counsel's knowledge and information, each of XXXX LLC and ALF LLC is duly qualified as a foreign limited partnership agreement, as applicable, liability company to transact business in Florida and Alabama; and the shares of issued and outstanding member interest of each of XXXX LLC and ALF LLC have been duly authorized and validly issued and are fully paid and non-assessable.
(iii) applicable resolutions authorizing Each of the transactions contemplated hereby Transferor and XXX X.X. is duly qualified and registered as a foreign partnership to transact business and is in the Transaction Documents good standing in Alabama and Florida.
(iv) designation of incumbency of each such entityThis Agreement has been duly authorized, executed and delivered by XXXX LLC, as the XXXX XX General Partner, ALF LLC, as the ALF L.P. General Partner and World Omni.
(v) All requirements The Origination Trust has been qualified as a business trust under applicable Alabama law and what is commonly known as a business trust under Chapter 609 of Rules 15Ga-2 the Florida Statutes, and 17g-10 all filings required to be made in respect of the Origination Trust's status as a business trust under the Exchange Act laws of the States of Alabama and Florida have been made and will be timely complied withare in full force and effect on the Closing Date.
(wa) The Depositor shall provide or cause to be Notes are in due and proper form, all conditions precedent provided for in the Indenture relating to the Representative conformed copies issuance, authentication and delivery of such opinionsthe Notes have been complied with and the Notes have been duly and validly authorized and, certificateswhen executed, letters issued, authenticated and documents as delivered pursuant to the Representative or counsel Indenture, and, in the case of the Class A Notes, when delivered to the Underwriters against payment of the consideration set forth in this Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Indenture.
(b) The Transferor Certificate is in due and proper form, all conditions precedent provided for in the Securitization Trust Agreement relating to the issuance, authentication and delivery of the Transferor Certificate have been complied with and the Transferor Certificate has been duly and validly authorized and, when executed, issued, authenticated and delivered pursuant to the Securitization Trust Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Securitization Trust Agreement.
(vii) Each Partnership Agreement and each Basic Document to which the Transferor, XXXX LLC, ALF LLC, XXX X.X. and World Omni is a party has been duly authorized, executed and delivered by the Transferor, XXXX LLC, ALF LLC, XXX X.X. and World Omni, as the case may reasonably requestbe, and, assuming the due authorization, execution and delivery thereof by the other parties thereto, will constitute the legal, valid and binding agreement of such entity enforceable against such entity in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting enforcement of creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (In rendering such opinion as to the enforceability of a Basic Document, counsel shall state that in the event of a conflict of law arising under such Basic Document, the governing law of such Basic Document will apply without regard to any otherwise applicable principles of conflicts of laws in the related state).
(viii) To the best knowledge and information of such counsel, (A) there are no legal or governmental proceedings pending or threatened that are required to be disclosed in the Registration Statement other than those disclosed therein and (B) all pending legal or governmental proceedings to which the Transferor, XXXX LLC, ALF LLC, ALF L.P., the Origination Trustee (in its capacity as trustee of the Origination Trust) or World Omni is a party or to which any of their respective properties or assets is subject that are not described in the Registration Statement, including ordinary routine litigation incidental to the business of such entity, are, considered in the aggregate with respect to the Transferor, XXXX LLC, ALF LLC, XXX X.X., the Origination Trustee (in its capacity as trustee of the Origination Trust) or World Omni as the case may be, not material.
(ix) The statements in the Prospectus under the captions "Summary", "Risk Factors", "Description of the Notes", "Security for the Notes", "Security for the Notes--The Residual Value Insurance Policy", "Additional Document
Appears in 1 contract
Samples: Underwriting Agreement (World Omni 1998-a Automobile Lease Securitization Trust)
Conditions of the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date and pay for the Notes will be Option Shares, if any, on the Option Closing Date, as the case may be, are subject to the accuracy accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties made of the Company contained herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor Company of its covenants and BMW Financial Services of their obligations hereunder, hereunder and to the following additional conditions precedentconditions:
(a) On the Closing Date, each The Registration Statement and all post-effective amendments thereto shall have become effective and any and all fillings required by Rule 424 and Rule 430A of the Transaction Documents, the SUBI Certificate, the Notes Rules and the Certificates Regulations shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereundermade, and any request of the Owner Trustee and Commission for additional information (to be included in the Indenture Trustee Registration Statement or otherwise) shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory been disclosed to the Representative and counsel complied with to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted taken or, to the knowledge of the Depositor or BMW Financial ServicesCompany, shall be contemplated by the CommissionCommission and no injunction, restraining order, or order of any nature by a Federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(eb) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated on the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Option Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a partyopinion of Xxxxxx & Xxxxxxx, are true and correctLLC, (iii) counsel for the DepositorCompany, BMW Financial Services and dated the UTI BeneficiaryClosing Date or the Option Closing Date, as the case may be, addressed to the Underwriters (and stating that it may be relied upon by counsel to the Underwriters) to the effect that:
(i) the Company and each of its subsidiaries has complied been duly organized and is validly existing as a corporation in good standing under the laws of its state of incorporation and is duly authorized to transact business as a foreign corporation in good standing in each other jurisdiction in which the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a material adverse effect on the Company and its subsidiaries; to such counsel's knowledge, except as described in the Prospectus, the Company does not own an equity interest in any other corporation, partnership, joint venture, trust or other business entity;
(ii) to the best knowledge of such counsel, (a) the Company and each of its subsidiaries has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its business as described in the Prospectus, and (b) such obtained licenses, permits and other governmental authorizations are in full force and effect and the Company and each of its subsidiaries is in all material respects complying therewith;
(iii) the Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; the authorized shares of the Common Stock have been duly authorized; the outstanding shares of the Company's Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and were issued and sold by the Company in compliance in all material respects with applicable securities laws; all of the securities of the Company conform to the description thereof contained in the Prospectus; the certificates for the Common Stock of the Company, assuming they are in the form filed with the agreements Commission, are in due and satisfied proper form; the conditions on its part shares of Common Stock to be performed sold by the Company pursuant to this Agreement have been duly authorized and are, or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor Shares to be sold by the Company, will be validly issued, fully paid and BMW Financial Services onlynon-assessable when issued and paid for as contemplated by this Agreement and the Registration Statement; and no preemptive rights of stockholders exist with respect to any of the Common Stock of the Company or the issue or sale thereof pursuant to any applicable statute or the provisions of the Company's Certificate of Incorporation or, to such counsel's knowledge, pursuant to any contractual obligation;
(iv) that the Representative's Warrants have been authorized for issuance to the Representative and will, when issued, possess rights, privileges, and characteristics as represented in the most recent form of Representative's Warrant filed as an exhibit to the Registration Statement; the securities to be issued upon exercise of the Representative's Warrants, when issued and delivered against payment therefor in accordance with the terms of the Representative's Warrants, will be duly and validly issued, fully paid, non-assessable and free of preemptive rights, and all corporate action required to be taken for the authorization and issuance of the Representative's Warrants, and the securities to be issued upon their exercise, has been validly and sufficiently taken;
(v) except as described in the Prospectus, to the knowledge of such counsel, there are no stop order suspending outstanding securities of the effectiveness Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and except as described in the Prospectus, to the knowledge of such counsel, no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any Common Stock or the right to have any shares of the Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company;
(vi) the Registration Statement has been issued and become effective under the Act and, to the best knowledge of such counsel, no stop order proceedings for that purpose with respect thereto have been instituted or are pending or are contemplated by threatened under the Commission.Act;
(tvii) Each Class all descriptions in the Registration Statement, and any amendment or supplement thereto, of Notes shall contracts and other documents are accurate and complete in all material respects and such counsel is familiar with the contracts and other documents referred to in the Registration Statement and any such amendment or supplement, or filed as exhibits to the Registration Statement, and such counsel does not know of any contracts or documents of a character required to be summarized (other than real property leases) or described therein or to be filed as exhibits thereto which are not so summarized, described or filed; the Registration Statement and any amendments or supplement thereto (other than the financial statements and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and the Rules and Regulations;
(viii) the statements in the Registration Statement under the captions "The Company," "Risk Factors," "Business," "Use of Proceeds," "Management" (other than the data contained in the Summary Compensation table), "Principal Shareholders," "Certain Transactions," "Shares Eligible for Future Sale" and "Description of Securities" and Items 14 and 15 have been rated reviewed by such counsel and, insofar as they refer to statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, are correct in all material respects; (ix) such counsel does not know of any contracts or documents required to be filed as exhibits to the rating specified Registration Statement or described in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have receivedRegistration Statement which are not so filed or described as required, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters contracts and documents as are summarized in the Representative or counsel to the Underwriters may reasonably request.Registration Statement are fairly summarized in all material respects;
Appears in 1 contract
Samples: Underwriting Agreement (Cell Robotics International Inc)
Conditions of the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes Class B Certificates will be subject to the accuracy of the representations and warranties made hereinon the part of Transferor herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the officers of the Depositor Originators and BMW Financial Services Transferor made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Transferor of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(ai) On the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI Certificate, the Notes Underwriters and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Transferor shall have received a fully executed copy letter, dated the date of delivery thereof or(which, with respect if the Effective Time is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as amendment or post-effective amendment to the registration statement to be filed shortly prior to the Effective Time), of KPMG Peat Marwick ("Peat Marwick") confirming that they are independent public accountants within the meaning of the date of Securities Act and the Preliminary Prospectus, Rules and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the drafts draft to which the Representative has Underwriters have previously agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative Underwriters and counsel to for the Underwriters; provided, that and (ii) on the Closing Date, the Underwriters and Transferor shall have received a letter, dated as of the Accountant’s Due Diligence Report at or Closing Date, from Peat Marwick updating the letter referred to in clause (i) above, in form and substance satisfactory to the Underwriters and counsel for the Underwriters.
(b) If the Registration Statement has not become effective prior to the deadline set forth Execution Time, unless the Underwriters agree in Section 2(a)(xxxvii)(Bwriting to a later time, the Registration Statement shall have become effective not later than 10:00 a.m. New York time on the date of this Agreement (or the next day, if this Agreement is executed after the close of business on the date hereof).
(c) The Preliminary Prospectus, ; if filing of the Prospectus, each Free Writing or any supplements thereto, is required pursuant to Rule 424(b), the Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with in the Commission in accordance with manner and within the Rules time period required by Rule 424(b); and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, or threatened.
(c) Subsequent to the knowledge execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of any of the Depositor Originators or BMW Financial ServicesTransferor which, shall be contemplated in the judgment of the Underwriters materially impairs the investment quality of the Class B Certificates; (ii) any downgrading in the rating of any debt securities of Mellon Bank Corporation or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the CommissionSecurities Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Transferor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal, New York or Pennsylvania authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Underwriters, the effect of and such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Class B Certificates.
(d) On the Closing Date, the The Representative shall have received the received:
(1) The favorable opinion or opinions of in-house internal counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx Transferor and/or of Reed Smith Shaw & Xxxxxxx LLPMcClay, counsel to Transferor, xxxxx the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Xxxxxng Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably requestits counsel, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to in the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, aggregate substantially to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.that:
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since Transferor has been duly organized as an association licensed as a national banking association and is validly existing and in good standing under the date laws of the Prospectus (exclusive United States, is duly qualified to do business and is in good standing under the laws of any supplement thereto), there has been no event that has had each jurisdiction other than where the failure to be so qualified would not have a material adverse effect on the DepositorTransferor's business, BMW Financial Services or the UTI Beneficiaryand has full corporate power and authority to own its properties, whether or not arising from transactions to conduct its business as described in the ordinary course of businessRegistration Statement and the Prospectus, except as set forth in or to enter into and perform its obligations under the Specified Agreements, to execute the Certificates and to consummate the transactions contemplated in the Prospectus (exclusive of any supplement thereto), hereby and thereby;
(ii) the representations and warranties each of the Depositor, BMW Financial Services Specified Agreements and the UTI BeneficiaryCertificates have each been duly authorized, executed and delivered by Transferor;
(iii) neither the execution and delivery of the Specified Agreements, nor the issuance or delivery of the Certificates, nor the consummation of any of the transactions contemplated herein or therein, nor the fulfillment of the terms of the Certificates or the Specified Agreements, will conflict with or violate, result in a material breach of or constitute a default under (A) any Requirements of Law applicable to Transferor or any statute or regulation currently applicable to the Trust, (B) any term or provision of any order known to such counsel to be currently applicable to Transferor or the Trust of any court, regulatory body, administrative agency or governmental body having jurisdiction over Transferor or the Trust, as the case may be, in this Agreement and the Transaction Documents or (C) any term or provision of any indenture or other agreement or instrument known to such counsel to which it Transferor or the Trust is a party, party or by which either of them or any of their properties are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied with the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and bound;
(iv) except as otherwise disclosed in the Prospectus (and any supplements thereto) or the Registration Statement, there is no pending or, to the best knowledge of such counsel, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Trust, the Certificates, the Specified Agreements or any of the transactions contemplated herein or therein or with respect to Transferor which, in the case of any such action, suit or proceeding with respect to Transferor if adversely determined, would have a material adverse effect on the Depositor Certificates or the Trust or upon the ability of Transferor to perform its obligations under the Pooling and BMW Financial Services onlyServicing Agreement or the Loan Agreement; and the statements included in the Registration Statement and the Prospectus (and any amendments or supplements thereto) describing (A) legal proceedings relating to Transferor and (B) the insurance premium finance loan agreements in each case fairly summarize the matters therein described;
(v) such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (and any amendments or supplements thereto as of the Closing Date) includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (other than financial and statistical information contained therein as to which such counsel need express no stop order suspending opinion) (such opinion may be limited to the effectiveness sections of the Prospectus under the headings ["Prospectus Summary--Transferor," "Prospectus Summary--Servicer," "Maturity Assumptions," "Business of the Originators," and "The Receivables"] and the parallel sections of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.Exhibit ___ thereto; and
Appears in 1 contract
Samples: Underwriting Agreement (Mellon Bank Premium Finance Master Trust)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Class A Certificates will be subject to the accuracy of the representations and warranties made on the part of the Seller herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Seller made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Seller of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On At the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, time this Agreement is executed and delivered by the parties thereto, shall be in full force Seller and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Closing Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Effective Time is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the ProspectusEffective Time shall have occurred not later than 10:00 p.m., each Free Writing Prospectus listed New York time, on Schedule III hereto the date of this Agreement or approved in writing such later date as shall have been consented to by the Depositor Representative. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(dc) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative You shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officer's certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers' knowledge after reasonable investigation, (i) since the date as of the Prospectus (exclusive of any supplement thereto)Closing Date, there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) all material respects, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(td) Each Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co. Ltd., Nissan Motor Corporation in U.S.A. ("NMC") or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Class A Certificates or makes it impractical or inadvisable to proceed with completion of Notes shall have been rated the sale of and payment for the Class A Certificates; (ii) any downgrading in the rating specified of any debt securities of NMC or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the Ratings Free Writing Prospectus by judgment of the hired NRSROs specified in Representative, the Ratings Free Writing Prospectuseffect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Class A Certificates.
(ue) The Joy Crose, Esq., General Counsel of the Seller, or other counsel satisxxxxxxx xo the Representative in its reasonable judgment, shall have receivedfurnished to the Representative such counsel's written opinion, from each of BMW Financial Servicesdated the Closing Date, in substantially the UTI Beneficiary and form set forth below, with such changes therein as counsel for the Depositor, a certificate executed by a secretary or assistant secretary thereof to which Underwriters shall be attached certified copies of the: reasonably agree:
(i) certificate The Seller has been duly incorporated and is validly existing as a corporation in good standing under the laws of formationthe State of Delaware with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification.
(ii) limited liability company agreement The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or limited partnership agreement, as applicable, the ownership of its property requires such qualification.
(iii) applicable resolutions authorizing The Pooling and Servicing Agreement and the transactions contemplated hereby Purchase Agreement have been duly authorized, executed and in delivered by the Transaction Documents and Servicer.
(iv) designation The indemnification agreement dated the date hereof (the "Indemnification Agreement") between the Servicer and Representative, on behalf of incumbency of each such entitythe several Underwriters, has been duly authorized, executed and delivered by the Servicer; and this Agreement has been duly authorized, executed and delivered by the Seller.
(v) All requirements of Rules 15Ga-2 The Pooling and 17g-10 under Servicing Agreement and the Exchange Act Purchase Agreement have been duly authorized, executed and will be timely complied withdelivered by the Seller.
(wvi) The Depositor shall provide Yield Supplement Agreement has been duly authorized, executed and delivered by the Seller and by Nissan Motor Acceptance Corporation (in its own capacity and not in its capacity as Servicer).
(vii) The execution, delivery and performance of this Agreement by the Seller, the Pooling and Servicing Agreement and the Purchase Agreement by the Seller and the Servicer and the Indemnification Agreement by the Servicer will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the properties or assets of the Seller or the Servicer, pursuant to the terms of the Certificate or Articles of Incorporation or the By-Laws of the Seller or the Servicer, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of their respective properties or any material agreement or instrument to which the Seller or the Servicer is a party or by which either the Seller or the Servicer or any of their respective properties is bound.
(viii) No authorization, approval or consent of any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by the Seller of this Agreement, the Pooling and Servicing Agreement or the Purchase Agreement or by the Servicer of the Indemnification Agreement, the Pooling and Servicing Agreement or the Purchase Agreement, except such as may be required under the Act or the Rules and Regulations and state securities laws, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of the Effective Date and the Closing Date.
(ix) The Class A Certificates have been duly authorized and, when executed and authenticated by the Trustee in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, the Class A Certificates will constitute valid and binding obligations of the Trust entitled to the benefits provided by the Pooling and Servicing Agreement.
(x) Nothing has come to such counsel's attention that would cause it to believe that as of the Effective Date and at the Closing Date the Registration Statement and the Prospectus (other than the financial statements and the other accounting information contained therein or omitted therefrom, as to which such counsel need express no belief) contained or contain any untrue statement of a material fact or omitted or omit to state any material fact required to be provided stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and governmental proceedings and contracts and other documents are inaccurate and do not fairly present the information required to be shown therein.
(xi) Such counsel does not know of any contract or other document of a character required to be filed as an exhibit to the Representative conformed copies Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required.
(xii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part this Agreement, the Indemnification Agreement, the Purchase Agreement or the Pooling and Servicing Agreement, (2) seeking to prevent the issuance of the Certificates, (3) that could materially and adversely affect the Seller's obligations under this Agreement, the Purchase Agreement or the Pooling and Servicing Agreement or the Servicer's obligations under the Indemnification Agreement, the Purchase Agreement or the Pooling and Servicing Agreement, or (4) seeking to affect adversely the federal or state income tax attributes of the Class A Certificates.
(xiii) The Servicer has full power and authority to sell and assign the property to be sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action.
(xiv) The Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Trustee as part of the Trust and has duly authorized such sale and assignment to the Trustee by all necessary corporate action.
(xv) The Receivables are "chattel paper" as defined in the Uniform Commercial Code, as in effect in the State of California.
(xvi) The undersigned is familiar with the Servicer's standard operating procedures relating to the Servicer's acquisition of a perfected first priority security interest in the vehicles financed by the retail installment sale contracts purchased by the Servicer in the ordinary course of the Servicer's business and relating to the sale by the Servicer to NARC of such opinionscontracts and such security interests in the financed vehicles in the ordinary course of the Servicer's and NARC's business. Assuming that the Servicer's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Servicer has not or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), certificatesthe Servicer has acquired or will acquire a perfected first priority security interest in the Financed Vehicles.
(f) Weil, letters and documents as the Representative or Gotshal & Manges LLP, special counsel to the Seller, shall have xxxxished to the Xxxxxsentative their written opinion, dated as of the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters may shall reasonably requestagree:
(i) Each of the Pooling and Servicing Agreement and the Purchase Agreement constitutes a valid and binding obligation of the Servicer, enforceable against the Servicer in accordance with its terms.
(ii) Each of the Pooling and Servicing Agreement and the Purchase Agreement constitutes a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables Corp /De)
Conditions of the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties made on the part of each of the Issuer, Interstar and the Trust Manager herein, to the accuracy of the statements of officers of each of the Depositor Issuer, Interstar and BMW Financial Services the Trust Manager made pursuant hereto when madeto the provisions hereof, to the performance by each of the Depositor Issuer, Interstar and BMW Financial Services the Trust Manager of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, You shall have received evidence satisfactory to you that each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have Documents has been duly authorized, executed and delivered by the respective parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect that all conditions precedent to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, other than the SUBI Certificateissuance of the Offered Notes, have been satisfied (including, without limitation, that the Class AB and Class B Notes shall have been issued and the Certificates shall be substantially in the forms heretofore provided to the Representativeare outstanding without any defaults thereon).
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative You shall have received three lettersevidence satisfactory to you that all the steps or conditions required by the Series Notice for the purchase by the Issuer from the Seller of the Loans and Related Rights to be acquired from the Seller pursuant thereto have been taken or satisfied, one relating to as the 2021-2 Leases dated as of a date at least five business days case may be.
(c) The Registration Statement shall have become effective on or prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication if a post-effective amendment is required to be filed with under the Commission Securities Act, such post-effective amendment shall have been filed with become effective, not later than 5:00 p.m., New York City time, on the Commission in accordance with the Rules date hereof or on such later date to which you have consented; and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission. The Prospectus, including all price-related information previously omitted from the prospectus which formed a part of the Registration Statement at the time it became effective, in accordance with Rule 430A, shall have been instituted or, transmitted to the knowledge of Commission for filing pursuant to Rule 424(b) within the Depositor or BMW Financial Services, shall be contemplated applicable time period prescribed for such filing by the Commissionrules and regulations under the Securities Act and in accordance with Section 5(b)(i) hereof; and prior to the Closing Date the Trust Manager shall have provided evidence satisfactory to you of such timely filing, and all requests for additional information shall have been complied with to your satisfaction.
(d) On The Irish Stock Exchange shall have agreed to list the Offered Notes, subject only to the issue of the Offered Notes or you shall be satisfied that such listing will be granted shortly after the Closing Date, .
(e) On or before the Representative Closing Date you shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwritersopinions, dated the Closing Date and in form and substance satisfactory to you, dated the Representative Closing Date of:
(i) XxXxx Xxxxxx LLP, legal advisers to the Underwriters;
(ii) Mayer, Brown, Xxxx & Maw LLP, legal advisers to Interstar and the Trust Manager;
(iii) Xxxxxx Xxxxxx Xxxxxxxx, legal advisers to Interstar and the Trust Manager;
(xx) Xxxxxxxxx Xxxxxxx Xxxxxx, legal advisers to the Issuer and the Note Trustee;
(v) legal advisers to the Swap Party;
(vi) Xxxxx, Xxxxxx & Xxxxxx, LLP, legal advisers to the Note Trustee;
(vii) KPMG, tax advisers to the Trust Manager; and such other documents, opinions and certificates as you may reasonably require.
(f) You shall have received a letter or letters from each counsel delivering any written opinion to any Rating Agency in connection with the transactions described in this Agreement allowing the Underwriters to rely on such opinion as if it were addressed to the Underwriters.
(eg) The Representative On the Closing Date the representations and warranties of the Issuer, Interstar and the Trust Manager in this Agreement shall be true, accurate and correct at, and as if made on, the Closing Date; and each of the Issuer, Interstar and the Trust Manager shall have performed all of their respective obligations under this Agreement to be performed on or before the Closing Date.
(h) Subsequent to the execution and delivery of this Agreement, there shall not have occurred:
(i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of any of the Issuer, Interstar, the Trust Manager or any Swap Party and their respective subsidiaries, in each case, taken as one enterprise, which, in the sole judgment of the Underwriters, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Notes;
(ii) any downgrading in the rating of any debt securities of any of Interstar, the Trust Manager, the Issuer or any Swap Party by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) of the Commission promulgated under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of the Class A Notes, the Class AB Notes or the Class B Notes or any debt securities of any of Interstar, the Trust Manager, the Issuer or any Swap Party (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating);
(iii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, the Irish Stock Exchange, the Australian Stock Exchange or any other exchange on which the Notes are listed, or the over-the-counter market, or any setting of minimum prices for trading on any such exchange, or any suspension of trading of any securities of any of Interstar, the Trust Manager, the Issuer or any Swap Party on any exchange or in the over-the-counter market, except where such suspension occurs as a result of technical or administrative difficulties which are promptly resolved;
(iv) any material disruption in commercial banking or securities settlement or clearance services in the United States generally or with respect to DTC specifically, or with respect to the Clearstream, Luxembourg or the Euroclear systems in Europe;
(v) any banking moratorium declared by U.S. Federal, New York, Irish, United Kingdom or Australian authorities; or
(vi) any outbreak or escalation of major hostilities in which the United States, Ireland, the United Kingdom or Australia is involved, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the sole judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Notes.
(i) You shall have received an opinion or opinions of Xxxxxxevidence satisfactory to you that the Class A Notes shall be rated AAA by S&P and Aaa by Xxxxx'x, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services Class AB Notes shall be rated [AAA] by S&P and [Aa1] by Xxxxx'x and the TrustClass B Notes having been assigned a rating of [AA-] by S&P and [Aa2] by Xxxxx'x and no such rating having been downgraded and no Notes having been placed on "credit watch" and there having occurred no downgrade, addressed nor any notice having been given of any intended or potential downgrading, or any review or possible change which does not indicate the direction of any such change, in the rating accorded to any other debt securities of the Underwriters, Issuer by any Rating Agency.
(j) You shall have received a solvency certificate of the Seller dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute signed by a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwritersduly authorized officer.
(k) On The Underwriters shall have received satisfactory evidence that payment of the Commissions and the expenses referred to in Section 10 will be made on the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositormanaging director, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate director or any chief general manager of each of the Depositor, BMW Financial Services Interstar and the UTI Beneficiary, Trust Manager and (as applicable, signed by its Chairman to paragraphs (i) and (ii) below only) of an authorized officer of the BoardIssuer in which such officers, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, shall state that:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, such entity in this Agreement and the Transaction Documents to which it is a party, are true and correct, ;
(iiiii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, such entity has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date and Date;
(iviii) (in the case of the Depositor and BMW Financial Services only) that Trust Manager, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and
(iv) subsequent to the date of the most recent financial statements supplied by Interstar to the Underwriters, there has been no material adverse change, nor any development or event involving a prospective material adverse change in the condition (financial or other), business, properties or results of operations of such entity and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate.
(tm) Each Class of Notes You shall have been rated received a letter, dated the rating Closing Date and in form and substance reasonably satisfactory to the Underwriters, of Ernst & Xxxxx confirming that they are independent public accountants within the standards established by the American Institute of Certified Public Accountants and stating to the effect that they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement and the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of Interstar and its subsidiaries and affiliates subject to the internal controls of such parties' accounting system or are derived directly from such records by analysis or computation or from the collateral tape containing the description of the Loans and Related Rights) with the results obtained from inquiries, a reading of such general accounting records and collateral tape and other procedures specified in the Ratings Free Writing Prospectus by the hired NRSROs such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in the Ratings Free Writing Prospectussuch letter.
(un) The Representative shall have receivedUnderwriters may, from each at their discretion and upon such terms as they think fit, waive compliance with the whole or any part of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: this Section 6 (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityother than Section 6(a)).
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Interstar Securitisation Management Pty LTD)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of the Seller and the Servicer herein on the date hereof and at the Closing Date, to the accuracy of the statements of officers of the Depositor Seller and BMW Financial Services the Servicer made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Seller and BMW Financial Services the Servicer of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On At the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, time this Agreement is executed and delivered by the parties thereto, shall be in full force Seller and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Closing Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to time of effectiveness of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or prior shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesSeller, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)officers’ certificate, dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerSeller representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the The representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Seller has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. 12 (Nissan 2014-B Underwriting Agreement)
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Closing Date:
(i) The representations and warranties of the Servicer in this Agreement are pending true and correct in all material respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission.
(tii) Each Class Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan North America, Inc. (“NNA”) or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over the counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance 13 (Nissan 2014-B Underwriting Agreement) services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Closing Date, Xxxx Xxxx, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have been rated furnished to the rating specified Representative such counsel’s written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(g) At the Closing Date, Xxxxx Xxxxx LLP, special counsel to the Seller and the Servicer, shall have furnished to the Representative their written opinion, dated as of the Closing Date, with respect to general corporate matters, the validity of the Notes, the Registration Statement, the Prospectus Supplement and the Base Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement, the Prospectus Supplement and the Base Prospectus, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(h) At the Closing Date, Xxxxx Xxxxx LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have furnished their written opinion, dated the Closing Date, with respect to the characterization of the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(i) At the Closing Date, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Closing Date, with respect to the validity of the Notes and such other related matters as the Representative shall require, in form and substance reasonably satisfactory to the Underwriters, and the Seller shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Closing Date, Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinion addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(k) At the Closing Date, each of Xxxxxx & Xxxxxxx LLP, counsel to Xxxxx Fargo Bank, National Association, as Indenture Trustee, and in-house counsel to Xxxxx Fargo & Company, the parent corporation of Xxxxx Fargo Bank, National Association shall have furnished their written opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters.
(l) The Representative shall have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Seller or the Servicer, as applicable, contained in the Ratings Free Writing Prospectus by Sale and Servicing Agreement and the hired NRSROs representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct in all material respects and that the Seller or the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date in all material respects.
(m) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
(un) The Representative On or prior to the Closing Date, the Seller shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of such opinions, certificates, letters further certificates and documents as the Representative or shall reasonably have required.
(o) At the Closing Date, the Representative shall have received an opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee counsel to the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters may reasonably requestand counsel to the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Auto Receivables 2014-B Owner Trust)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy condition that each of the representations Registration Statement, the ADS Registration Statement and warranties made herein, to the accuracy of Exchange Act Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, date hereof and to the following additional conditions precedent:
(a) On The representations and warranties of the Company and the Selling Shareholders contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of such Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates Company and the Selling Shareholders shall have been duly authorized, executed and delivered by the parties thereto, shall performed all of their respective obligations under this Agreement theretofore to be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeperformed.
(b) Both at The Representatives shall have received on such Closing Date a certificate, dated such Closing Date and signed on behalf of the Company by an executive officer of the Company, to the effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such Closing Date, (ii) the Company have complied with all of the agreements, performed all of their obligations and satisfied all of the conditions hereunder on their part that are required to be complied with, performed or before the date hereof, and satisfied on or before the such Closing Date, the Representative shall have received three letters, one relating Date and (iii) subsequent to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus most recent financial statements in the Registration Statement, the General Disclosure Package and covering procedures performed as of the date of the Preliminary Final Prospectus, and one relating there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed have a Material Adverse Effect except as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)the General Disclosure Package or as described in such certificate.
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Final Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(A)(a) hereof; on or prior . Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesCompany’s best knowledge, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement and prior to such Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and the Controlled Entities, taken as a whole, the effect of which in the reasonable judgment of the Representatives is material and adverse and, in the reasonable judgment of the Representatives, makes it impracticable to proceed with the offering, sale or delivery of the Offered Securities on such Closing Date on the terms and in the manner contemplated by this Agreement.
(e) There shall not be any material adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the reasonable judgment of the Representatives, in consultation with the Company, would make it inadvisable or impractical to proceed with the public offering or the delivery of the Offered Securities on such Closing Date on the terms and in the manner contemplated in this Agreement.
(f) The Representatives shall have received letters, dated, respectively, the date hereof and such Closing Date, of PricewaterhouseCoopers, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the letter delivered on each Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date.
(g) The Representatives shall have received the customary opinions and disclosure letter of Xxxxxxx Xxxxxxx & Xxxxxxxx, United States counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives.
(h) The Company shall have received a customary opinion from Fangda Partners, PRC counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. A copy of such opinion shall have been provided to the Representatives with consent from such counsel.
(i) The Representatives shall have received a customary opinion from Xxxxxx and Calder, Cayman Islands counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives.
(j) The Representatives shall have received from Xxxxxxxx & Xxxxxxxx, United States counsel for the Underwriters, the customary opinions and disclosure letter, dated such Closing Date, in form and substance satisfactory to the Representatives.
(k) The Representatives shall have received from King & Wood Mallesons, PRC counsel for the Underwriters, a customary opinion, dated such Closing Date, in form and substance satisfactory to the Representatives.
(l) The Representatives shall have received one or more customary opinions from U.S. counsels related to the Selling Shareholders, dated such Closing Date, in form and substance satisfactory to the Representatives.
(m) The Representatives shall have received one or more customary opinions of the Selling Shareholders’ local counsels, dated such Closing Date, in form and substance satisfactory to the Representatives.
(n) The Representatives shall have received a customary opinion from Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Depositary, in form and substance satisfactory to the Representatives.
(o) On or prior to the date hereof, the Representatives shall have received duly executed lock-up agreements from: (i) each of Xxxx Xxx Ma and Xxxxxx X. Xxxx, substantially in the form set forth in Exhibit A1; (ii) each of Yahoo! Inc., Yahoo! Hong Kong Holdings Limited, SB China Holdings Pte Ltd, SoftBank Corp. and SBBM Corporation, substantially in the form set forth in Exhibit A2; (iii) each of the non-executive directors listed in Schedule D1, substantially in the form set forth in Exhibit A3; (iv) each of the officers, partners, employees and participants in the Company’s incentive plans listed in Schedule D2, substantially in the form set forth in Exhibit A4; (v) each of the existing shareholders listed in Schedule D3, substantially in the form set forth in Exhibit A5; and (vi) Golden Web Investment Limited, substantially in the form set forth in Exhibit A6; and each of the lock-up letters referred to in clauses (i) to (vi) shall be in full force and effect on such Closing date.
(p) As of such Closing Date, the Representative Company and the Depositary shall have received executed and delivered the favorable opinion Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the Deposit Agreement.
(q) The Depositary shall have furnished or opinions of in-house counsel caused to be furnished to the Depositor and BMW Financial Services addressed Representatives at such Closing Date, certificates satisfactory to the UnderwritersRepresentatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, dated and the Closing Date execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(r) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder.
(s) Offered Securities shall have been approved to be listed on the Exchange.
(t) Each Selling Shareholder (other than Yahoo! Inc. and Yahoo! Hong Kong Holdings Limited) shall have delivered to the Representatives a Power of Attorney and a Custody Agreement, each of which duly executed and in form and substance satisfactory to the Representative and counsel to the UnderwritersRepresentatives.
(eu) The Representative Each of Yahoo! Inc. and Yahoo! Hong Kong Holdings Limited shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel delivered to the Depositor, BMW Financial Services Representatives executed transfer forms for the Offered Shares represented by the Offered Securities to be respectively sold by Yahoo! Inc. and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the UnderwritersYahoo! Hong Kong Holdings Limited hereunder.
(fv) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriterscertificate, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion an attorney-in-fact of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLPeach Selling Shareholder, in its capacity as federal tax and ERISA counsel to which the Depositor, the Vehicle Trust and the Trust, attorney-in-fact shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, such Selling Shareholder in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, correct as the case may be, of such Closing Date; such Selling Shareholder has complied with the all agreements and satisfied the all conditions on its their part to be performed or satisfied hereunder at or prior to such Closing Date; this Agreement is in the form or substantially the form approved by such Selling Shareholder; and such attorney-in-fact was duly acting as the attorney-in-fact of such Selling Shareholder at the respective times of the signing and delivery of this Agreement, the applicable lock-up agreement for such Selling Shareholder, the Custody Agreement and any other document executed and delivered by such attorney-in-fact prior to or on such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies on behalf of such opinionsSelling Shareholder, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably requestif any.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made hereinon the part of each of the Trust, the Depositor and NMAC herein on the date hereof and at the Series 2017-A Issuance Date, to the accuracy of the statements of officers of the Trust, the Depositor and BMW Financial Services NMAC made pursuant hereto when madeto the provisions hereof, to the performance by the Trust, the Depositor and BMW Financial Services NMAC of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Series 2017-A Issuance Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Series 2017-A Issuance Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to time of effectiveness of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the Closing execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Series 2017-A Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesDepositor, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersofficers’ certificate, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the XxxxSeries 2017-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing A Issuance Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerDepositor representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Series 2017-A Issuance Date:
(i) since the date Each of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Series 2017-A Issuance Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Series 2017-A Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Series 2017-A Issuance Date:
(i) Each Class of the representations and warranties of NMAC in this Agreement is true and correct in all material respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Series 2017-A Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of NMAC or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Depositor, Nissan North America, Inc. (“NNA”) or NMAC which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(f) At the Series 2017-A Issuance Date, Xxxx X. Xxxx, Esq., General Counsel of the Depositor and NMAC, or other counsel reasonably satisfactory to the Representative in its reasonable judgment, shall have been rated furnished to the rating specified Representative such counsel’s written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2017-A Issuance Date, reasonably satisfactory in form and substance to the Representative and its counsel.
(g) At the Series 2017-A Issuance Date, Xxxxx Xxxxx LLP, special counsel to the Depositor and NMAC, shall have furnished to the Representative their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated as of the Series 2017-A Issuance Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, tax matters, the validity of the Notes, the Registration Statement, the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus.
(h) At the Series 2017-A Issuance Date, Xxxxx Xxxxx LLP shall have furnished their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2017-A Issuance Date, with respect to the characterization of the transfer of the Receivables by NMAC to the Depositor and with respect to other bankruptcy and perfection of security interest matters and such opinion shall be reasonably satisfactory in form and in substance to the Representative and its counsel.
(i) At the Series 2017-A Issuance Date, Xxxxxx Xxxxxx LLP, counsel to the Underwriters, shall have furnished their written opinion dated the Series 2017-A Issuance Date, with respect to the validity of the Notes and such other related matters as the Underwriters shall require, and such opinion shall be reasonably satisfactory in form and substance to the Representative and its counsel and the Depositor shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Series 2017-A Issuance Date, Xxxxxxxx, Xxxxxx & Finger, counsel to the Trust and the Owner Trustee, shall have furnished their written opinion to you, the Depositor and the Servicer, dated the Series 2017-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(k) At the Series 2017-A Issuance Date, Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, shall have furnished their written opinion dated as of Series 2017-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(l) At the Series 2017-A Issuance Date, in-house counsel to the Asset Representations Reviewer, shall have furnished such counsel’s written opinion dated as of Series 2017-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(m) The Representative shall have received an officer’s certificate dated the 2017-A Issuance Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Depositor and NMAC in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Depositor or NMAC, as applicable, contained in the Ratings Free Writing Prospectus by Transfer and Servicing Agreement and the hired NRSROs representations and warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase Agreement are true and correct in all material respects and that the Depositor or NMAC, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Series 2017-A Issuance Date in all material respects.
(n) At the Series 2017-A Issuance Date, Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee counsel to the Depositor and NMAC, shall have furnished their written opinion dated as of Series 2017-A Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel.
(o) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
(up) The Representative On or prior to the Series 2017-A Issuance Date, the Trust, the Depositor and NMAC shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of Underwriters such opinions, certificates, letters further certificates and documents as the Representative or counsel to the Underwriters may shall reasonably requesthave required.
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Master Owner Trust Receivables)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the [Offered] Notes will be subject to the accuracy of the representations and warranties made hereinon the part of each of the Trust, the Depositor and NMAC herein on the date hereof and at the Series 20[●]-[●] Issuance Date, to the accuracy of the statements of officers of the Trust, the Depositor and BMW Financial Services NMAC made pursuant hereto when madeto the provisions hereof, to the performance by the Trust, the Depositor and BMW Financial Services NMAC of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Series 20[●]-[●] Issuance Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative shall have received three letters, one relating to the 2021-2 Leases letters dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed respectively as of the date of the Preliminary Prospectus, this Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, Series 20[●]-[●] Issuance Date substantially in the form forms of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to agreed.
(b) If the Representative and counsel to time of effectiveness of the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is not prior to the deadline set forth in Section 2(a)(xxxvii)(B)execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than [●] [a.m.][p.m.
(c) The ], New York time, on the date of this Agreement or such later date as shall have been consented to by the Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Prospectus, each Ratings Free Writing Prospectus listed on Schedule III hereto or approved in writing by and the Depositor Final Prospectus and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission all amendments and supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the Closing execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than [●] [a.m.][p.m.], New York time, on the date of this Agreement or, if earlier, the time the Final Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been consented to by the Representative. Prior to the Series 20[●]-[●] Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesDepositor, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersofficers’ certificate, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Series 20[●]-[●] Issuance Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, the President or any Vice President, the Treasurer, any Assistant Treasurer, the President and by a principal financial officer, the principal or accounting officer or any of the foregoing officers of its general partnerDepositor representing and warranting that, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her such officers’ knowledge after reasonable investigation, as of the Series 20[●]-[●] Issuance Date:
(i) since the date Each of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor in this Agreement and the Transaction Documents to which it is a party, are true and correctcorrect in all material respects, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Depositor has complied with the all agreements and satisfied the in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Series 20[●]-[●] Issuance Date, that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(tii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Series 20[●]-[●] Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such officers’ knowledge after reasonable investigation, as of the Series 20[●]-[●] Issuance Date:
(i) Each Class of the representations and warranties of NMAC in this Agreement is true and correct in all material respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Series 20[●]-[●] Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission.
(ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of NMAC or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Depositor, Nissan North America, Inc. (“NNA”) or NMAC which, in the judgment of the Representative, materially impairs the investment quality of the [Offered] Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the [Offered] Notes; (ii) any suspension of trading of any securities of NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the [Offered] Notes.
(f) At the Series 20[●]-[●] Issuance Date, Xxxx X. Xxxx, Esq., General Counsel of the Depositor and NMAC, or other counsel reasonably satisfactory to the Representative in its reasonable judgment, shall have been rated furnished to the rating specified Representative such counsel’s written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 20[●]-[●] Issuance Date, reasonably satisfactory in form and substance to the Representative and its counsel.
(g) At the Series 20[●]-[●] Issuance Date, Xxxxx Xxxxx LLP, special counsel to the Depositor and NMAC, shall have furnished to the Representative their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated as of the Series 20[●]-[●] Issuance Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, tax matters, the validity of the Notes, the Registration Statement, the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus.
(h) At the Series 20[●]-[●] Issuance Date, Xxxxx Xxxxx LLP shall have furnished their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 20[●]-[●] Issuance Date, with respect to the characterization of the transfer of the Receivables by NMAC to the Depositor and with respect to other bankruptcy and perfection of security interest matters and such opinion shall be reasonably satisfactory in form and in substance to the Representative and its counsel.
(i) At the Series 20[●]-[●] Issuance Date, [●], counsel to the Underwriters, shall have furnished their written opinion dated the Series 20[●]-[●] Issuance Date, with respect to the validity of the Notes and such other related matters as the Underwriters shall require, and such opinion shall be reasonably satisfactory in form and substance to the Representative and its counsel and the Depositor shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(j) At the Series 20[●]-[●] Issuance Date, [Xxxxxxxx, Xxxxxx & Finger], counsel to the Trust and the Owner Trustee, shall have furnished their written opinion to you, the Depositor and the Servicer, dated the Series 20[●]-[●] Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(k) At the Series 20[●]-[●] Issuance Date, [●], counsel to the Indenture Trustee, shall have furnished their written opinion dated as of Series 20[●]-[●] Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(l) At the Series 20[●]-[●] Issuance Date, [●], counsel to the Asset Representations Reviewer, shall have furnished their written opinion dated as of Series 20[●]-[●] Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(m) The Representative shall have received an officer’s certificate dated the Series 20[●]-[●] Issuance Date of the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Depositor and NMAC in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Depositor or NMAC, as applicable, contained in the Ratings Free Writing Prospectus by Transfer and Servicing Agreement and the hired NRSROs representations and warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase Agreement are true and correct in all material respects and that the Depositor or NMAC, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Series 20[●]-[●] Issuance Date in all material respects.
(n) At the Series 20[●]-[●] Issuance Date, [Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP], special Tennessee counsel to the Depositor and NMAC, shall have furnished their written opinion dated as of Series 20[●]-[●] Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel.
(o) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus.
(up) The Representative On or prior to the Series 20[●]-[●] Issuance Date, the Trust, the Depositor and NMAC shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of Underwriters such opinions, certificates, letters further certificates and documents as the Representative or Underwriters shall reasonably have required.
(q) [The Interest Rate [Cap][Swap] Agreement(s) shall be in full force and effect.]
(r) [You shall have received an opinion addressed to you, the Depositor and NMAC of special counsel to the Underwriters may [Cap Provider][Swap Counterparty], dated as of Series 20[●]-[●] Issuance Date and reasonably requestsatisfactory in form and substance to the Representative and its counsel.]
Appears in 1 contract
Samples: Underwriting Agreement (Nissan Wholesale Receivables Corp Ii)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company and the applicable Selling Stockholders herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the applicable Selling Stockholders of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Representatives shall have received a fully executed copy letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of KPMG LLP with respect to the Notes financial statements and Certificatesschedules of Insignia Financial Group, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially Inc. contained in the forms heretofore provided Registration Statement and Deloitte & Touche LLP with respect to the Representativefinancial statements and schedules of the Company contained in the Registration Statement, in each case in form and substance satisfactory to the Representatives in all respects.
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Initial Registration Statement is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or such later date as shall have been consented to by CSFB. If the Preliminary Prospectus Effective Time of the Additional Registration Statement (if any) is not prior to the execution and covering procedures performed as delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the Preliminary Prospectustime the Prospectus is printed and distributed to any Underwriter, and one relating or shall have occurred at such later date as shall have been consented to by CSFB. If the Prospectus, dated on or about the date Effective Time of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued that has not been lifted and no proceedings for that purpose shall have been instituted that have not been terminated or, to the knowledge of any Selling Stockholder, the Depositor Company or BMW Financial ServicesCSFB, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Underwriters including the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a majority in interest of the Underwriters including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities.
(d) On the The Representatives shall have received an opinion, dated such Closing Date, of Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, counsel for the Representative shall have received Company, substantially in the favorable opinion or opinions form of in-house counsel to the Depositor Exhibit A-1 hereto and BMW Financial Services addressed to the Underwritersa letter, dated such Closing Date, substantially in the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersof Exhibit A-2 hereto.
(e) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of Lxxxxxxx Xxxxxx, Xxxxx & Xxxxxxx LLPEsq., counsel to General Counsel of the DepositorCompany, BMW Financial Services and substantially in the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwritersof Exhibit B hereto.
(f) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date (or, in the case of XxxxxxSxxxxxxxx Arbitrage CDO, Xxxxx & Bockius LLPLtd., counsel to the DepositorSxxxxxxxx CLO, BMW Financial Services Ltd., Sxxxxxxxx/RMF Transatlantic CDO, Ltd. and the Trust, addressed to the UnderwritersNational City Corporation, dated the First Closing Date and addressing the following issues (i) none Date), of counsel for each of the DepositorSelling Stockholders, substantially in the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes forms of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActExhibits C-1 through C-12 hereto.
(g) The Representative Representatives shall have received a negative assurance letter from XxxxxxCravath, Xxxxx Swaine & Bockius Mxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable such opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwritersor opinions, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the incorporation of the Company, the validity of the Offered Securities delivered on such Closing Date, the Registration Statements, the Prospectus and other related matters as the Representative Representatives may reasonably requestrequire, and the Selling Stockholders and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(rh) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate, dated the such Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive Officer or the President or any Vice President and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued that has not been lifted and no proceedings for that purpose have been instituted or are pending (that have not been terminated) or are contemplated by the Commission; the Additional Registration Statement (if necessary hereunder) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed and distributed to any Underwriter; and, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the Prospectus or as described in such certificate.
(ti) Each Class of Notes The Representatives shall have been rated received a letter, dated the rating Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Ratings Free Writing Prospectus by Closing Date for the hired NRSROs specified in the Ratings Free Writing Prospectuspurposes of this subsection.
(uj) The Representative Representatives shall have receivedreceived certificates, each dated the date hereof, from Kxxxxxx X. Xxx, Chief Financial Officer of the Company, substantially in the forms of Exhibit D and Exhibit E hereto.
(k) On or prior to the date of this Agreement, the Representatives shall have received lock-up letters from each of BMW Financial Services, the UTI Beneficiary and equityholders of the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and Company listed in the Transaction Documents and (iv) designation of incumbency of each such entitySchedule D hereto.
(vl) All requirements The Custodian will deliver to CSFB a letter stating that they will deliver to each Custodial Selling Stockholder a United States Treasury Department Form 1099 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) on or before January 31 of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied withyear following the date of this Agreement.
(wm) Each Bxxx Selling Stockholder agrees to deliver to CSFB prior to closing a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). The Depositor shall provide or cause to be provided to Selling Stockholders and the Representative Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel Representatives reasonably request. CSFB may, in its sole discretion, waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of a Closing Date or otherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Cb Richard Ellis Group Inc)
Conditions of the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the respective representations and warranties made on the part of the Transferor and World Omni herein, to the accuracy of the statements of the respective officers of the Depositor Transferor and BMW Financial Services World Omni made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Transferor and BMW Financial Services World Omni of their respective obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On (i) the Closing Date, each date of the Transaction Documentsthis Agreement, the SUBI CertificateRepresentative, World Omni, the Notes Issuer and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Transferor shall have received a fully executed copy letter or letters, dated the date of delivery thereof or(which, with respect if the Effective Time is prior to the Notes execution and Certificatesdelivery of this Agreement, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereofof this Agreement or, one relating if the Effective Time is subsequent to the Preliminary Prospectusexecution and delivery of this Agreement, dated on or about shall be prior to the date filing of the Preliminary Prospectus and covering procedures performed as amendment or post-effective amendment to the registration statement to be filed shortly prior to the Effective Time), of Arthur Andersen LLP ("Arthux Xxxxrxxx") xxnfirminx xxxx xxxx xxx independent public accountants within the meaning of the date of Act and the Preliminary Prospectus, Rules and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the UnderwritersRegulations, substantially in the form of the draft or drafts to which the Representative has previously agreed previously and otherwise substantially in form and in substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that for the Underwriters and (ii) on the Closing Date, the Representative, World Omni, the Issuer and the Transferor shall have received a letter or letters, dated as of the Accountant’s Due Diligence Report at or Closing Date, from Arthur Andersen, updating exxx xxtxxx xxxxvered pursuant to clause (i) above, in form and substance satisfactory to the Representative and counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusdate of this Agreement, the ProspectusEffective Time shall be the date of execution and delivery of this Agreement, each Free Writing Prospectus listed on Schedule III hereto or approved in writing the next business day after the date of this Agreement or such later date as shall have been consented to by the Depositor Representative. If the Effective Time is prior to the execution and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with delivery of this Agreement, the Commission Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior . Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Transferor, World Omni or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative shall have received an opinion certificates of the President, any Vice President or opinions the Treasurer or any Assistant Treasurer of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act Transferor and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from XxxxxxWorld Omni, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and each dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and in which such counsel officer shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
state that (r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii1) the representations and warranties of the Depositor, BMW Financial Services Transferor and the UTI BeneficiaryWorld Omni, as the case may be, in this Agreement and the Transaction Documents each Basic Document to which it is a party, party and in this Agreement are true and correctcorrect on the Closing Date, (iii2) to the Depositorbest knowledge of such officer after reasonable investigation, BMW Financial Services and the UTI BeneficiaryTransferor or World Omni, as the case may be, has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
Commission and (t3) Each Class subsequent to the date of Notes shall have this Agreement, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transferor or World Omni, as the case may be, except as set forth in or contemplated by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(ud) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: :
(i) certificate The favorable opinion of formationKirkland & Ellis, special cxxxxxx xo txx Xxansferor and World Omni, dated the Closing Date and satisfactory in form and substance to the Underwriter and counsel for the Underwriter, and substantially to the effect that:
(ii1) limited liability company Assuming the due authorization, execution and delivery thereof by the other parties thereto, each Basic Document will constitute a valid and binding agreement or limited partnership agreementof the Issuer, the Transferor and World Omni, as applicablethe case may be, enforceable against such entity in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting enforcement of creditors' rights generally and by general principles of equity (iii) applicable resolutions authorizing the transactions contemplated hereby and regardless of whether such enforceability is considered in the Transaction Documents and (iv) designation of incumbency of each such entitya proceeding in equity or at law).
(v2) All requirements of Rules 15Ga-2 and 17g-10 under Assuming the Exchange Act Notes have been duly and validly authorized, when executed, authenticated and delivered as specified in the Indenture and the Series Supplement and when delivered to the Underwriters against payment of the consideration specified herein, the Notes will constitute a valid and binding obligation of the Issuer, enforceable in accordance with their terms and the holder of the Notes will be timely complied withentitled to the benefits accorded by the Indenture and the Series Supplement.
(w3) The Depositor shall statements in the Prospectus under the captions "Summary", "Risk Factors", "The Notes", "The Trust", "The Transfer and Servicing Agreements", insofar as such statements purport to summarize certain terms or provisions of the Notes, the Transferor Certificate and the Basic Documents, provide or cause a fair summary of such provisions, and the statements in the Prospectus under "Risk Factors", "Certain Legal Aspects of the Receivables--Certain Matters Relating to be provided Bankruptcy", "Certain Federal Income Tax Consequences", and "ERISA Considerations", to the Representative conformed copies extent that they constitute matters of law, summaries of legal matters, documents or proceedings or legal conclusions relating to U.S. federal law have been prepared or reviewed by such opinions, certificates, letters counsel and documents as the Representative or counsel to the Underwriters may reasonably requestare correct in all material respects.
Appears in 1 contract
Samples: Underwriting Agreement (Wodfi LLC)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Securities will be subject to the accuracy of the representations and warranties made on the part of the Company and the Guarantor contained herein, to the accuracy of the statements of the officers of the Depositor Company and BMW Financial Services the Guarantor made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Company and BMW Financial Services the Guarantor of their obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing date of this Agreement and on the Delivery Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee Representatives shall have received a fully executed copy thereof orcopies of letters of Coopers & Xxxxxxx L.L.P., with respect Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP, addressed to the Notes and Certificates, a conformed copy thereof. The Transaction DocumentsCompany, the SUBI Certificate, the Notes Guarantor and the Certificates shall be Representatives, substantially in the forms heretofore provided to previously approved by the RepresentativeRepresentatives.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company, the Guarantor or BMW Financial Servicesany Underwriter, shall be contemplated by the Commission.
(d) On the Closing Date, the Representative shall have received the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(ec) The Representative Representatives shall have received an opinion or opinions opinions, dated the Delivery Date, of XxxxxxWeil, Xxxxx Gotshal & Xxxxxxx Xxxxxx LLP, counsel for the Company and the Guarantor, to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.effect that:
(i) On The Company is a corporation in good standing, duly incorporated and validly existing under the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each laws of the Depositor, BMW Financial Services State of Colorado and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed is authorized by its Chairman Articles of Incorporation to transact the Boardbusiness in which it is engaged, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), Prospectus.
(ii) The Guarantor is a corporation in good standing, duly incorporated and validly existing under the representations and warranties laws of the Depositor, BMW Financial Services state of its incorporation and is authorized by its Articles or Certificate of Incorporation to transact the UTI Beneficiary, as the case may be, business in this Agreement and the Transaction Documents to which it is a partyengaged, are true and correct, as set forth in the Prospectus.
(iii) The execution, delivery and performance of the Depositor, BMW Financial Services Indenture by the Company and the UTI BeneficiaryGuarantor have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor; the Indenture has been duly and validly executed and delivered by the Company and the Guarantor and (assuming the due authorization, as execution and delivery by the case may beTrustee), constitutes the legal, valid and binding agreement of the Company and the Guarantor enforceable against each of them in accordance with its terms; and the Indenture has complied with been duly qualified under the agreements and satisfied the conditions on its part to be performed or satisfied at or prior to the Closing Date and 0000 Xxx.
(iv) (The Securities, when duly executed and authenticated pursuant to the Indenture and delivered to the Underwriters against payment therefor in accordance with the case provisions hereof, will constitute legal, valid and binding obligations of the Depositor Company, entitled to the benefits of the Indenture and BMW Financial Services onlyenforceable against the Company in accordance with their terms.
(v) that The Guarantees, when duly executed pursuant to the Indenture and delivered to the Underwriters in accordance with the provisions hereof, will constitute legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms.
(vi) The execution, delivery and performance of this Agreement by the Company and the Guarantor have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor; and this Agreement has been duly and validly executed and delivered by each of the Company and the Guarantor.
(vii) No consent, approval, authorization or other action by, or filing or registration with, any federal governmental authority is required in connection with the execution and delivery by the Company or the Guarantor of the Indenture or the issuance and sale of the Securities and the Guarantees to the Underwriters pursuant to the terms of this Agreement, except such as have been obtained or made under the 1933 Act and the rules and regulations thereunder and such as may be required under the 1934 Act and the rules and regulations thereunder.
(viii) The Registration Statement was declared effective under the 1933 Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceeding for that purpose has been initiated or threatened by the Commission.
(ix) The statements in the Prospectus under the headings "Description of Debt Securities and Guarantees" and "Description of Notes and Debentures", insofar as such statements constitute a summary of certain provisions of the documents referred to therein, are accurate in all material respects. In rendering such opinion, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and the Guarantor and of public officials. Such counsel may also rely as to matters of Colorado law upon the opinion referred to in Section 5(e) without independent verification. In addition, such counsel shall state that it has participated in conferences with representatives of the Company, the Guarantor and with the Representatives and their counsel, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed; such counsel has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and the limitations inherent in the examination made by such counsel and the nature and extent of such counsel's participation in such conferences are such that such counsel is unable to assume, and does not assume, any responsibility for the accuracy, completeness or fairness of such statements; however, based upon such counsel's participation in the aforesaid conferences, nothing has come to its attention which lead it to believe that the Registration Statement, at the time it became effective or at the date of this Agreement, and the Prospectus and any further amendments and supplements thereto made by the Company and the Guarantor prior to such Delivery Date (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no belief) did not comply as to form in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and the rules and regulations thereunder or that the Registration Statement (except as to the financial statements and the notes thereto, and the other financial and statistical data included therein, as to which such counsel need express no belief), and each amendment thereto, as of its effective date (or, if an annual report on Form 10-K has been filed by the Guarantor with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing) or at the date of this Agreement, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its issue date or at the Delivery Date, the Prospectus (except as to the financial statements and the notes thereto, and the other financial and statistical data included therein, as to which such counsel need express no belief), and each amendment or supplement thereto contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion may state that it does not address the impact on the opinions contained therein of any litigation or ruling relating to the divestiture by American Telephone and Telegraph Company of ownership of its operating telephone companies (the "Divestiture").
(d) The Representatives shall have received from Underwriters' Counsel an opinion, dated the Delivery Date, to the effect specified in clauses (i), (ii), (iii), (iv), (v), (vi), (viii) and (ix) and the penultimate paragraph of subsection (c) above, subject to the final paragraph of subsection (c) above, and with respect to such other matters as the Representatives may reasonable request. In rendering such opinion, such counsel may rely as to matters of Colorado law upon the opinion referred to in Section 5(e) without independent verification.
(e) The Representatives shall have received an opinion or opinions, dated the Delivery Date, of the General Counsel of the Company or the Corporate Counsel of the Guarantor, to the effect that:
(i) The Company is a corporation in good standing, duly incorporated and validly existing under the laws of the State of Colorado and is authorized by its Articles of Incorporation to transact the business in which it is engaged, as set forth in the Prospectus.
(ii) The Guarantor is a corporation in good standing, duly incorporated and validly existing under the laws of the state of its incorporation and is authorized by its Articles or Certificate of Incorporation to transact the business in which it is engaged, as set forth in the Prospectus.
(iii) The execution, delivery and performance of the Indenture by the Company and the Guarantor have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor; the Indenture has been duly and validly executed and delivered by the Company and the Guarantor and (assuming the due authorization, execution and delivery by the Trustee), constitutes the legal, valid and binding agreement of the Company and the Guarantor enforceable against each of them in accordance with its terms; and the Indenture has been duly qualified under the 0000 Xxx.
(iv) The Securities, when duly executed and authenticated pursuant to the Indenture and delivered to the Underwriters against payment therefor in accordance with the provisions hereof, will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
(v) The Guarantees, when duly executed pursuant to the Indenture and delivered to the Underwriters in accordance with the provisions hereof, will constitute legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms.
(vi) The execution, delivery and performance of this Agreement by the Company and the Guarantor have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor; and this Agreement has been duly and validly executed and delivered by each of the Company and the Guarantor.
(vii) All state regulatory consents, approvals, authorizations or other orders (except as to the state securities or Blue Sky laws, as to which such counsel need express no opinion) legally required for the execution of the Indenture and the issuance and sale of the Securities and the Guarantees to the Underwriters pursuant to the terms of this Agreement have been obtained; provided that such counsel may rely on opinions of local counsel satisfactory to said counsel.
(viii) The enforceability and the legal, valid and binding nature of the respective agreements and obligations of the Company and the Guarantor set forth in the Indenture, the Securities and the Guarantees (the "Agreements") are not affected by, and the performance of the obligations set forth in such Agreements, the issuance and sale of the Securities and the Guarantees and the consummation of the transactions contemplated in such Agreements are not prevented or restricted by, any action, suit, proceeding, order or ruling relating to or issued or arising as a result of, the Divestiture.
(ix) To the best of my knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company, the Guarantor or any subsidiary of the Guarantor is a party or to which the assets, properties or operations of the Company, the Guarantor or any subsidiary of the Guarantor is subject, before or by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the assets, properties or operations thereof or the consummation of the transactions contemplated by the Underwriting Agreement or the Indenture or the performance by the Company or the Guarantor of their respective obligations thereunder. In rendering such opinion, such counsel may rely as to matters of New York law upon the opinion referred to in Section 5(c) without independent verification.
(f) The Representatives shall have received a certificate, dated the Delivery Date, of the President or any Vice President of the Company in which such officers shall state that, to the best of their knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement are true and correct as if made at and as of the Delivery Date, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Date, that no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(t) Each Class Commission and that, subsequent to the date of Notes shall have the Prospectus, there has been rated the rating specified no material adverse change in the Ratings Free Writing Prospectus financial condition or results of operations of the Company, except as set forth in or contemplated by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(ug) The Representative Representatives shall have receivedreceived a certificate, from each dated the Delivery Date, of BMW Financial Servicesthe President or any Vice President of the Guarantor in which such officers shall state that, to the best of their knowledge after reasonable investigation, the UTI Beneficiary representations and warranties of the DepositorGuarantor in this Agreement are true and correct as if made at and as of the Delivery Date, that the Guarantor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Delivery Date, that no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose are pending or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial condition or results of operations of the Guarantor and its subsidiaries, taken as a certificate executed whole, except as set forth in or contemplated by the Prospectus.
(h) If the Prospectus contains a secretary or assistant secretary thereof discussion of United States federal income tax considerations with respect to which the Securities, the Company shall be attached certified copies have furnished to the Representatives a letter of the: its United States tax counsel, dated the Delivery Date, to the effect that (i) certificate the Underwriters may rely on the opinion of formationsuch counsel, filed as an exhibit to the Registration Statement to the same extent as though it were dated the date of such letter authorizing reliance, and (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing such counsel has reviewed the transactions contemplated hereby and statements in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 Prospectus under the Exchange Act have been caption "Certain United States Federal Income Tax Considerations" and, insofar as they are, or refer to, statements of United States law or legal conclusions, such statements are accurate in all material respects The Company and the Guarantor will be timely complied with.
(w) The Depositor shall provide or cause to be provided to furnish the Representative Underwriters with such conformed copies of such opinions, certificates, letters and documents as they reasonably request. In case any of the Representative or counsel conditions specified above in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Representatives by delivering written notice of termination to the Underwriters may reasonably requestCompany and the Guarantor. Any such termination shall be without liability of any party to any other party except to the extent provided in Sections 4(g), 7 and 8 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Us West Inc)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy that each of the representations Registration Statement, the ADS Registration Statement and warranties made herein, to the accuracy of Exchange Act Registration Statement shall have become effective not later than [12:00 p.m.] (New York City time) on the statements of officers of the Depositor and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, date hereof and to the following additional conditions precedent:
(a) On The representations and warranties of the Company contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of the Closing Date, each and the Company has complied with all of the Transaction Documentsagreements, performed all of its obligations and satisfied all of the SUBI Certificateconditions hereunder on its part that are required to be complied with, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at performed or before the date hereof, and satisfied on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Final Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(A)(a) hereof; on or prior . Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial ServicesCompany, shall be contemplated by the Commission.
(dc) On Subsequent to the execution and delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Controlled Entities, taken as a whole, the effect of which in the sole judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Securities on the Closing Date or the Additional Closing Date, as the Representative case may be, on the terms and in the manner contemplated by this Agreement.
(d) There shall not be any adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the sole judgment of the Representatives would make it inadvisable or impractical to proceed with the public offering or the delivery of the Offered Securities at the First Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in this Agreement. There shall not be any litigation, proceedings, investigations, processes for administrative sanctions or other actions initiated or threatened by any governmental agency before any governmental agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules and regulations, the VIE Agreements, the issuance and sales of the Offered Shares and ADSs, the listing and trading of the ADSs on the NYSE or the transactions contemplated by this Agreement and the Deposit Agreement the effect of which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Securities on the Closing Date or the Optional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement.
(e) The Representatives shall have received letters, dated, respectively, the favorable opinion or opinions date hereof and each Closing Date, of in-house counsel to Deloitte Touche Tohmatsu, confirming that they are a registered public accounting firm and independent public accountants within the Depositor meaning of the Securities Laws and BMW Financial Services addressed to the Underwriters, dated the Closing Date and substantially in form and substance satisfactory to the Representative Underwriters, containing statements and counsel information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxxfinancial statements and certain financial information contained in the Registration Statement, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services General Disclosure Package and the Trust, addressed to Final Prospectus; provided that the Underwriters, dated letter delivered on the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to shall use a “cut-off date” not earlier than the Representative and counsel to the Underwritersdate hereof.
(f) The Representative Representatives shall have received an opinion or opinions opinion, dated such Closing Date, of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Bockius Xxxx LLP, United States counsel to for the Depositor, BMW Financial Services and the Trust, addressed to the UnderwritersCompany, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative Representatives, and counsel to substantially in the Underwritersform of Exhibit A hereto.
(ig) On The Company shall have received an opinion from Han Kun Law Offices, PRC counsel for the Company, dated the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative Underwriters, and counsel substantially in the form set forth in Exhibit B hereto. A copy of such opinion shall have been provided to the UnderwritersRepresentatives with consent from such counsel.
(jh) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, The Representatives shall have delivered received an opinion addressed to from Xxxxx Xxxxxxx, Cayman Islands counsel for the UnderwritersCompany, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the such Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative Underwriters, and substantially in the form set forth in Exhibit C hereto.
(i) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, United States counsel to for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representatives may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ij) certain true sale The Representatives shall have received from Fangda Partners, PRC counsel for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representatives may require, and nonconsolidation bankruptcy matters the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(k) The Representatives shall have received an opinion from White & Case LLP, counsel for the Depositary, in form and (ii) certain security interest matterssubstance satisfactory to the Representatives, and substantially in the form set forth in Exhibit D hereto.
(l) The Representative Company shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel furnished or caused to be furnished to the Indenture Trustee, addressed to Representatives certificates of executive and principal financial or accounting officers of the UnderwritersCompany, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel satisfactory to the Vehicle TrusteeRepresentatives, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative which such officers shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters represent as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, follows: (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and Date, (ivii) (in the case of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, are contemplated by the Commission.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable resolutions authorizing filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission, (iv) subsequent to the date of the most recent financial statements in the Registration Statement, the General Disclosure Package and the Final Prospectus, there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to have a Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate, and (v) such other matters as the Representatives may reasonably request.
(m) On or prior to the date hereof, the Representatives shall have received lock-up letters from each of the directors, executive officers, existing shareholders of the Company (a list of which is set forth in Schedule C), each substantially in the form and substance set forth in Exhibit E.
(n) The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the Deposit Agreement.
(o) The Depositary shall have furnished or caused to be furnished to the Representatives at such Closing Date, certificates satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(p) The Company shall have entered into a side letter agreement with the Depositary, substantially in the form and substance set forth in Exhibit F hereto (the “Depositary Letter”), instructing the Depositary, for a period of 180 days after the date of the Final Prospectus, not to accept any deposit by the persons specified therein of any Ordinary Shares in the Company’s ADR facility or issue any new ADSs to any such person subject to the exceptions stated in the Depositary Letter or further instructions by the Company.
(q) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityhereunder.
(vr) All requirements of Rules 15Ga-2 and 17g-10 under No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Exchange Act Registration Statement, the ADS Registration Statement or the Final Prospectus shall have been and will be timely complied withfiled to which the Representatives shall have objected in writing.
(ws) The Depositor Offered Securities shall provide or cause have been approved to be provided to listed on the Representative NYSE. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters Representatives may reasonably request. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Optional Securities on a Optional Closing Date which is after the First Closing Date, the obligations of the several Underwriters to purchase the relevant Optional Securities shall be deemed terminated by the Company at any time at or prior to the First Closing Date or such Optional Closing Date, as the case may be, unless as otherwise provided, and such termination shall be without liability of any party to any other party except as provided in Section 11. Notwithstanding the immediately preceding paragraph, the Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase and pay for the Notes Securities will be subject to the accuracy of the representations and warranties made on the part of the Province herein, to the accuracy of the statements of officers the representatives of the Depositor and BMW Financial Services Province made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor Province of its obligations hereunder and BMW Financial Services of their obligations hereunder, with regard to the Securities and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Province or BMW Financial Servicesthe Representatives, shall be contemplated by the CommissionSEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement.
(db) On Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the Representative financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received received, on the favorable opinion or opinions of in-house counsel to the Depositor and BMW Financial Services addressed to the UnderwritersClosing Date, a certificate dated the Closing Date and in form and substance signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representative and counsel Representatives to the Underwriterseffect set forth in the first clause of this Section 9(b).
(ec) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative Underwriters shall have received an opinion of Xxxxxxx and Xxxxxx LLPthe Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)Province, dated the Closing Date, to the effect that under the Underwriters may rely laws of British Columbia and Canada and subject to such qualifications and based on each such assumptions as are customary in British Columbia in respect of an opinion of this type:
(i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the same extent as though such opinion was addressed to each as of its dateSecurities.
(sii) Each This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the DepositorProvince, BMW Financial Services except as rights to indemnity and contribution hereunder may be limited under applicable law.
(iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the UTI Beneficiary Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities.
(iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect.
(v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada.
(vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated.
(vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.
d) The Underwriters shall have furnished received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Representative a certificate of each Underwriters, given in respect of the Depositor, BMW Financial Services laws of British Columbia and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicableCanada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon.
e) The Underwriters shall have received the opinion of Axxxx Xxxxx Sxxxxxxx Xxxxxxxx US LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that:
(i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities.
(ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.
(iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.
(iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder.
f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the signer statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.
g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure.
h) The Underwriters shall have received a certificate has reviewed of the Registration StatementMinister of Finance of the Province, the Prospectus, any supplements Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Prospectus and this Agreement and that Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event shall state that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Province in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) that the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Province has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the CommissionSEC.
(ti) Each Class The purchase and sale of Notes the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York.
j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request.
k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been rated the rating specified given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the Ratings Free Writing Prospectus ratings accorded the debt securities of the Province by the hired NRSROs specified any nationally recognized statistical rating agency in the Ratings Free Writing Prospectus.
(u) The Representative shall have receivedUnited States. All such opinions, from each of BMW Financial Servicescertificates, the UTI Beneficiary letters and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and documents will be timely complied with.
(w) The Depositor shall provide or cause to be provided in compliance with the provisions hereof only if they are reasonably satisfactory to the Representative Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representative Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or counsel at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Underwriters may reasonably requestProvince or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.
Appears in 1 contract
Samples: Fiscal Agency Agreement (Province of British Columbia)
Conditions of the Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Notes on the Closing Date will be subject to the accuracy of the representations and warranties made herein, on the part of the Company herein as of the Applicable Time and as of the Closing Date to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each date of the Transaction DocumentsProspectus (prior to the execution of this Agreement), on the SUBI Certificateeffective date of any additional registration or any post‑effective amendment to any Registration Statement, in each case, that is filed subsequent to the Notes date of this Agreement, and on the Certificates Closing Date (at 9:30 A.M., New York City time, on such date), KPMG Audit plc shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect furnished to the Notes Representatives a letter or letters, dated the respective date of delivery thereof, in form and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided substance satisfactory to the RepresentativeRepresentatives.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company or its subsidiaries which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Notes; (ii) any downgrading in the rating of the Notes or any other debt securities, preferred shares, financial strength or claims paying ability of the Company or any of the Designated Subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any public announcement that any such organization has under surveillance or review its rating of the Notes or any other debt securities or preferred shares of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S., U.K., Bermudian or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by United States Federal, New York, U.K. or Bermudian authorities; (vii) a change or development involving a prospective change in Bermuda taxation affecting the Company, the Notes or transfers thereof; (viii) any major disruption of settlements of securities or clearance services in the United States, the United Kingdom or Bermuda or (ix) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the United Kingdom or Bermuda, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Notes.
(d) On The Representatives shall have received an opinion, dated the Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx LLP, United States counsel for the Representative shall have received Company in the favorable opinion or opinions form of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex I hereto.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing corporateDate, enforceability and securities matters satisfactory of Xxxxxxx (Bermuda) Limited, Bermuda counsel for the Company in the form and substance to the Representative and counsel to the Underwritersof Annex II hereto.
(f) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing Date, of Xxxxxxx Xxxx & Xxxxxxxxx (UK) LLP, U.K. counsel for the following issues (i) none Company, in the form of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActXXX hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx Xxxxxxx Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable such opinion or opinions of Xxxxxxopinions, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the Registration Statement, the Prospectus and other related matters as the Representative Representatives may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(rh) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate or certificates, dated the applicable Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive Officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Financial Officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package and the Prospectus, there has been no material adverse change, or any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package and the Prospectus or as described in such certificate.
(ti) Each Class of Notes The Company shall have been rated provided the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed Representatives with copies of such additional opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may Representatives reasonably request.
(j) At the Closing Date counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes, as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Notes, as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(k) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Date and such termination shall be without liability of any party to any other party except as provided in Section 5(a)(xvii) and except that Sections 2, 8, 10 , 11 and 17 shall survive any such termination and remain in full force and effect. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Aspen Insurance Holdings LTD)
Conditions of the Obligations of the Underwriters. The obligations obligation of ------------------------------------------------- the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of [the][each] Transferor herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services [the][each] Transferor made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services [the][each] Transferor of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, PriceWaterhouseCoopers LLP will furnish to the Representative a letter dated as of the Closing Date substantially in the form and substance of the draft to which the Representative previously agreed.
(b) The Registration Statement will have become effective not later than 4:00 p.m., New York time, on the day following the date of this Agreement or such later date as to which the Representative will have consented; and prior to the Closing Date no stop order suspending the effectiveness of the Registration Statement shall will have been issued and no proceedings for that purpose shall will have been instituted or, to the knowledge of the Depositor or BMW Financial Services[the][either] Transferor, shall be are contemplated by the Commission.
(dc) On the Closing Date, the The Representative shall will have received the favorable opinion or opinions as of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a officer's certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its the Chairman of the Board, President, any Vice the President, the TreasurerExecutive Vice President Finance or the Treasurer of [the][each] Transferor representing and warranting that, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any as of the foregoing officers Closing Date (except to the extent such certificate relates expressly to another date, they will be true and correct as of its general partner, as applicable, dated such date on the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, [the][such] Transferor in this Agreement and the Transaction Documents to which it is a party, are will be true and correctcorrect in all material respects, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, that [the][such] Transferor has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) all material respects, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(td) Each Class Since the respective dates as of Notes shall have been rated the rating specified which information is given in the Ratings Free Writing Prospectus by as amended or supplemented, there will not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the hired NRSROs specified business or assets of the Issuer or the Transferor[s], or any material adverse change in the Ratings Free Writing financial position or results or operations of the Issuer or the Transferor[s], otherwise than as set forth or contemplated in the Prospectus, that in any such case makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus as amended or supplemented.
(ue) The Representative shall Since the respective dates as of which information is given in the Prospectus as amended or supplemented, there will not have receivedoccurred any material adverse change, from or any development involving a prospective material adverse change, in or affecting particularly the business or assets of Ford Credit and its subsidiaries or Ford Motor Company and its subsidiaries, in each case considered as a whole, or any material adverse change in the financial position or results or operations of BMW Financial ServicesFord Credit and its subsidiaries or Ford Motor Company and its subsidiaries, in each case considered as a whole, otherwise than as set forth or contemplated in the Prospectus, that in any such case makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Prospectus as amended or supplemented.
(f) Subsequent to the execution and delivery of this Agreement, the UTI Beneficiary United States will not have become engaged in hostilities which have resulted in the declaration of a national emergency or a declaration of war which makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering of the delivery of the Notes on the terms and in the Depositormanner contemplated in the Prospectus as amended or supplemented.
(g) Susan J. Thomas, a certificate executed by a secretary counsel to the Transferor[s], or assistant secretary thereof other counsel satixxxxxxxx xx xxx Representative in their reasonable judgment, will have furnished to which shall be attached certified copies of the: the Representative, her written opinion, dated the Closing Date, in form reasonably satisfactory to the Representative in its reasonable judgment, to the effect that:
(i) certificate [The][Each] Transferor has been duly [incorporated] [organized] and is validly existing as a [corporation][limited liability company] in good standing under the laws of formationthe State of Delaware, and is duly qualified to transact business and is in good standing in each jurisdiction in the United States of America in which the conduct of its business or the ownership of its property requires such qualification.
(ii) limited liability company agreement or limited partnership agreementThis Underwriting Agreement has been duly authorized, as applicable, executed and delivered by [the][each] Transferor.
(iii) applicable resolutions authorizing The Transfer and Servicing Agreement[s], the Receivables Purchase Agreement [to which each Transferor is a party], the Trust Agreement and the Administration Agreement have been duly authorized, executed and delivered by, and each constitutes a valid and binding obligation of, [the][each] Transferor.
(iv) The consummation of the transactions contemplated hereby and in by this Underwriting Agreement, the Transaction Documents and (iv) designation the Interest Rate Swap Agreement, and the fulfillment of incumbency the terms hereof and thereof, will not conflict with or result in a material breach of each any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the property or assets of [the][either] Transferor pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument known to such entitycounsel under which [the][either] Transferor is a debtor or guarantor, nor will such action result in any violation of the provisions of the [Certificate of Incorporation][Amended and Restated Limited Liability Company Agreement ] [or the By-Laws] [or other organizational documents] of [the][either] Transferor.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act The Notes have been duly authorized and executed by the Issuer; when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for by the purchasers thereof, the Notes will be timely complied withconstitute valid and binding obligations entitled to the benefits provided by the Indenture.
(wvi) The Depositor shall provide Registration Statement has become effective under the Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or cause threatened by the Commission; and the Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Transferor[s] prior to the Closing Date (other than the financial statements and other accounting information contained in the Registration Statement or the Prospectus as amended or supplemented or any further amendments or supplements thereto, or omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Rules and Regulations.
(vii) Such counsel believes that neither the Registration Statement (other than the financial statements and other accounting information contained therein or omitted therefrom, as to which such counsel need express no opinion) nor any amendment thereto, at the time the same became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be provided stated therein or necessary to make the statements therein not misleading.
(viii) Such counsel believes that at the Closing Date the Prospectus as amended or supplemented (other than the financial statements and the other accounting information contained therein or omitted therefrom, as to which such counsel need express no opinion) contains no untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ix) Such counsel does not know of any contract or other document of a character required to be filed as an exhibit to the Representative conformed copies Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which is not filed or incorporated by reference or described as required.
(x) Such counsel does not know of any legal or governmental proceedings pending to which [the][either] Transferor is a party or of which any property of [the][either] Transferor is the subject, and no such opinions, certificates, letters and documents as the Representative or proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, other than as set forth or contemplated in the Underwriters Prospectus as amended or supplemented and other than such proceedings which, in her opinion, will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of [the][either] Transferor and will not materially and adversely affect the performance by [the][either] Transferor of its obligations under, or the validity and enforceability of, any of the Transaction Documents or the Notes.
(xi) The Notes, the Transaction Documents and this Agreement each conform in all material respects with the descriptions thereof contained in the Registration Statement and the Prospectus.
(xii) [The][Each] Transferor has full power and authority to sell and assign the property sold or to be sold and assigned to and deposited with the Owner Trustee as part of the Issuer and has duly authorized such sale and assignment to the Owner Trustee by all necessary corporate action.
(xiii) Prior to any sale or assignment thereof by [the][each] Transferor to the Issuer, [the][such] Transferor owned the Receivables and the Collateral Security free and clear of any lien, security interest or charge. The assignment of the Receivables and the Collateral Security, all documents and instruments relating thereto and all proceeds thereof to the Owner Trustee, pursuant to [the][each] Transfer and Servicing Agreement, vest in the Owner Trustee all interests which were purported to be conveyed thereby, free and clear of any lien, security interest or charge except as specifically permitted pursuant to [the][such] Transfer and Servicing Agreement.
(xiv) Immediately prior to the transfer of the Receivables to the Issuer, the Transferor['s] [s'] interest in the Receivables, the Collateral Security, the security interests in the Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected upon the filing of the UCC-1 financing statement with the appropriate authority in the applicable jurisdiction and constituted a perfected first priority interest therein. No filing or other action, other than the filing of the UCC-1 financing statements referred to above, is necessary to perfect and maintain the interest or the security interest of the Owner Trustee in the Receivables, the Collateral Security, the security interests in the Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties.
(xv) The Transferor[s] [is][are] not, and will not as a result of the offer and sale of the Notes as contemplated by this Agreement become, [an] "investment compan[y][ies]" as defined in the Investment Company Act of 1940, as amended. Such opinion may reasonably requestbe made subject to the qualifications that the enforceability of the terms of the Transaction Documents and the Notes may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law.
Appears in 1 contract
Samples: Underwriting Agreement (Ford Credit Auto Receivables LLC)
Conditions of the Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Notes on the Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each date of the Transaction DocumentsProspectus (prior to the execution of this Agreement), on the SUBI Certificateeffective date of any additional registration or any post-effective amendment to any Registration Statement, in each case, that is filed subsequent to the Notes date of this Agreement, and on the Certificates Closing Date (in each case, at 9:30 A.M., New York City time, on such date), KPMG Audit plc shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect furnished to the Notes Representatives a letter or letters, dated the respective date of delivery thereof, in form and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided substance satisfactory to the RepresentativeRepresentatives.
(b) Both at or before the date hereof, and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary The Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor or BMW Financial Services, shall be contemplated threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
(c) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company or its subsidiaries which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Notes; (ii) any downgrading in the rating of the Notes or any other debt securities, preferred shares, financial strength or claims paying ability of the Company or any of the Designated Subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any public announcement that any such organization has under surveillance or review its rating of the Notes or any other debt securities or preferred shares of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S., U.K., Bermudian or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by United States federal, New York, U.K. or Bermudian authorities; (vii) a change or development involving a prospective change in Bermuda taxation affecting the Company, the Notes or transfers thereof; (viii) any major disruption of settlements of securities or clearance services in the United States, United Kingdom or Bermuda or (ix) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the United Kingdom or Bermuda, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Notes.
(d) On The Representatives shall have received an opinion, dated the Closing Date, of Xxxxx & XxXxxxx LLP, United States counsel for the Representative shall have received Company in the favorable opinion or opinions form of in-house counsel to the Depositor and BMW Financial Services addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the UnderwritersAnnex I hereto.
(e) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing corporateDate, enforceability and securities matters satisfactory of Xxxxxxx, Bermuda counsel for the Company in the form and substance to the Representative and counsel to the Underwritersof Annex II hereto.
(f) The Representative Representatives shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersopinion, dated the Closing Date and addressing Date, of Xxxxx & XxXxxxx, U.K. counsel for the following issues (i) none Company, in the form of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection ActAnnex III hereto.
(g) The Representative Representatives shall have received a negative assurance letter from Xxxxxx, Xxxxx Xxxxxxx Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable such opinion or opinions of Xxxxxxopinions, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues the Registration Statement, the Prospectus and other related matters as the Representative Representatives may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(rh) The Representative Representatives shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion)certificate or certificates, dated the applicable Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services Chief Executive Officer and the UTI Beneficiary shall have furnished to the Representative a certificate of each Chief Financial Officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change, or any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the Prospectus or as described in such certificate.
(ti) Each Class of Notes The Company shall have been rated provided the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed Representatives with copies of such additional opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may Representatives reasonably request.
(j) At the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes, as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Notes, as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(k) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5(a)(xiii) and except that Sections 2, 8, 10 , 11 and 17 shall survive any such termination and remain in full force and effect. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Aspen Insurance Holdings LTD)
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be Firm Shares on the Closing Date and the Additional Shares on any Option Closing Date are subject to the accuracy fulfillment of each of the representations and warranties made herein, following conditions on or prior to the accuracy of the statements of officers of the Depositor Closing Date and BMW Financial Services made pursuant hereto when made, to the performance by the Depositor and BMW Financial Services of their obligations hereunder, and to the following additional conditions precedenteach Option Closing Date:
(a) On All the representations and warranties of the Offerors contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, each as applicable. The Offerors shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all material respects with any of the Transaction Documents, the SUBI Certificate, the Notes agreements herein contained and the Certificates shall have been duly authorized, executed and delivered required to be performed or complied with by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect Offerors at or prior to the Notes and CertificatesClosing Date or the Option Closing Date, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representativeas applicable.
(b) Both If the Registration Statement is not effective at or before the date hereof, time of the execution and on or before the Closing Datedelivery of this Agreement, the Representative Registration Statement shall have received three lettersbecome effective (or, one relating to the 2021if a post-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication effective amendment is required to be filed with pursuant to Rule 430A under the Commission Act, such post-effective amendment shall have become effective) not later than 9:30 A.M., New York City time, on the date of this Agreement or such later time as the Representatives may approve in writing or, if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been filed with as required by the Commission in accordance with Act, if necessary; and at the Rules Closing Date and Regulations and Section 7(h) hereof; on or prior to the each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted commenced or shall be pending before or, to the best knowledge of the Depositor Underwriters or BMW Financial Servicesthe Offerors, shall be contemplated threatened by the Commission; every request for additional information on the part of the Commission shall have been complied with to the Underwriters' satisfaction; no stop order suspending the sale of the Shares in any jurisdiction referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or, to the best knowledge of the Underwriters or the Offerors, threatened.
(c) The Shares shall have been qualified for sale under the Blue Sky laws of such states as shall have been specified by the Representatives.
(d) On The legality and sufficiency of the Closing Dateauthorization, issuance and sale or transfer and sale of the Shares hereunder, the Representative validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have received been approved by counsel for the favorable opinion Underwriters exercising reasonable judgment, and no Underwriter shall have advised the Offerors that the Registration Statement or opinions the Prospectus, or any amendment or supplement thereto, contains an untrue statement of in-house counsel material fact, or omits to the Depositor and BMW Financial Services addressed to state a fact that in the Underwriters, dated ' opinion is material and is required to be stated therein or is necessary to make the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwritersstatements therein not misleading.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel Subsequent to the Depositorexecution and delivery of this Agreement, BMW Financial Services and there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the business or properties of the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI BeneficiarySubsidiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated that, in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties reasonable judgment of the DepositorRepresentatives, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents makes it impractical or inadvisable to which it is a party, are true and correct, (iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied proceed with the agreements and satisfied the conditions on its part to be performed public offering or satisfied at or prior to the Closing Date and (iv) (in the case purchase of the Depositor and BMW Financial Services only) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are Shares as contemplated by the Commissionhereby.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided to the Representative conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters may reasonably request.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of officers of the Depositor and BMW Financial Services Company made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Prospectus shall have been duly authorized, executed and delivered filed by the parties thereto, Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the 1933 Act Regulations and in accordance herewith and each Permitted Free Writing Prospectus shall be in full force and effect and no default shall exist thereunderhave been filed by the Company with the Commission within the applicable time periods prescribed for such filings by, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof orotherwise in compliance with, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the RepresentativeRule 433.
(b) Both at At or before after the date hereof, Applicable Time and on or before the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h) hereof; on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesyou, shall be contemplated threatened by the Commission.
(dc) On At or after the Applicable Time and prior to the Closing Date, the Representative rating assigned by Xxxxx’x Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have received been lowered.
(d) Since the favorable opinion or opinions respective most recent dates as of in-house counsel which information is given in the Pricing Disclosure Package and the Prospectus and up to the Depositor Closing Date, there shall not have been any material adverse change in the condition of the Company, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and BMW Financial Services addressed the Prospectus, and, since such dates and up to the UnderwritersClosing Date, dated there shall not have been any material transaction entered into by the Closing Date Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in form the manner contemplated by the Pricing Disclosure Package and substance satisfactory to the Representative and counsel to the UnderwritersProspectus.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing corporate, enforceability and securities matters satisfactory in form and substance to the Representative and counsel to the Underwriters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative You shall have received an opinion of Xxxxxxx and Xxxxxx LLPX. Xxxxxxxx, counsel Esq., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Indenture Trustee, addressed Company) (or other appropriate counsel reasonably satisfactory to the UnderwritersRepresentatives, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and which may include Duke Energy Corporation’s other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion“in-house” counsel), dated the Closing Date, to the effect that that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the Underwriters may rely on each such opinion laws of the State of Florida, with power and authority (limited liability company and other) to own its properties and conduct its business as described in the same extent as though such opinion was addressed Pricing Disclosure Package and the Prospectus and to each as of enter into and perform its dateobligations under this Agreement.
(sii) Each of The Company is duly qualified to do business in each jurisdiction in which the Depositor, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer ownership or any of the foregoing officers leasing of its general partnerproperty or the conduct of its business requires such qualification, as applicableexcept where the failure to so qualify, dated considering all such cases in the Closing Dateaggregate, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had does not have a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in properties, financial condition or contemplated in the Prospectus (exclusive results of any supplement thereto), (ii) the representations and warranties operations of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, in this Agreement and the Transaction Documents to which it is a party, are true and correct, Company.
(iii) the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, has complied The Registration Statement became effective upon filing with the agreements and satisfied Commission pursuant to Rule 462 of the conditions on its part to be performed or satisfied at or prior 1933 Act Regulations, and, to the Closing Date and (iv) (in the case best of the Depositor and BMW Financial Services only) that such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by threatened under the Commission1933 Act.
(tiv) Each Class of Notes shall have been rated the rating specified The descriptions in the Ratings Free Writing Registration Statement, the Pricing Disclosure Package and the Prospectus by of any legal or governmental proceedings are accurate and fairly present the hired NRSROs specified information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Ratings Free Writing Prospectus.
(u) The Representative shall have received, from each of BMW Financial ServicesRegistration Statement, the UTI Beneficiary Pricing Disclosure Package or the Prospectus and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entityis not so disclosed.
(v) All requirements of Rules 15Ga-2 This Agreement has been duly authorized, executed and 17g-10 under delivered by the Exchange Act have been and will be timely complied withCompany.
(wvi) The Depositor issue and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles of Organization or the Limited Liability Company Operating Agreement, the Florida Revised Limited Liability Company Act or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company is a party or by which it or its property is bound or to which any of its property or assets is subject or any instrument filed or incorporated by reference as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2018 or any subsequent Quarterly Report on Form 10-Q of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2018 which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes.
(vii) The Florida Public Service Commission has issued an appropriate order with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such order is still in effect and the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such order.
(viii) The Indenture has been duly qualified under the 1939 Act.
(ix) The Indenture has been duly and validly authorized by all necessary limited liability company action, has been duly and validly executed and delivered by the Company.
(x) The Notes have been duly authorized, executed and issued by the Company.
(xi) No consent, approval, authorization, order, registration or qualification of or with any federal or Florida governmental agency or body or, to such counsel’s knowledge, any federal or Florida court, which has not been obtained or taken and is not in full force and effect, is required for the issue and sale of the Notes by the Company and the compliance by the Company with all of the provisions of this Agreement, except for the registration under the 1933 Act of the Notes, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. Such counsel shall provide state that nothing has come to such counsel’s attention that has caused such counsel to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations. Such counsel shall also state that nothing has come to such counsel’s attention that has caused such counsel to believe that (i) the Registration Statement as of the effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or cause omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any opinion or belief as to (i) the Representative conformed copies financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such opinionscounsel may state that such counsel has relied as to certain factual matters on information obtained from public officials, certificatesofficers of the Company and other sources believed by such counsel to be reliable.
(f) You shall have received an opinion of Hunton Xxxxxxx Xxxxx LLP, letters and documents as the Representative or counsel to the Underwriters may reasonably requestCompany, dated the Closing Date, to the effect that:
(i) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects.
(ii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby.
(iii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein.
(vi) The Indenture constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
(vii) The Notes, when duly authorized and executed by the Company, duly authenticated by the Trustee in accordance with the provisions of the Indenture and delivered by the Company against payment therefor in accordance with the terms of the Agreement and the Indenture, will constitute the valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be Firm Shares on the Closing Date and the Option Shares, if any, on the Option Closing Date are subject to the accuracy of the representations and warranties made hereinon the part of the Company herein as of the Closing Date or the Option Closing Date, as the case may be, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates The Underwriters shall have been duly authorizedreceived, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully executed copy thereof or, with respect to the Notes and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially in the forms heretofore provided to the Representative.
(b) Both at or before on the date hereof, and on or before the Closing Date and the Option Closing Date, as the Representative shall have received three letterscase may be, one relating to the 2021-2 Leases a comfort letter dated as of a date at least five business days prior to the date hereof, one relating to the Preliminary Prospectus, dated on or about the date of the Preliminary Prospectus and covering procedures performed as of the date of the Preliminary Prospectus, this Underwriting Agreement and one relating to the Prospectus, dated on or about the date of the Prospectus and covering procedures performed as of the date of Closing Date or the ProspectusOption Closing Date, in each case, delivered by KPMG LLP, independent certified public accountantsas the case may be, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative Underwriters, from Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act and counsel the related published Rules and Regulations, and containing such other statements and information as are ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Underwriters; providedfinancial statements and certain financial and statistical information contained in or incorporated by reference in the Registration Statement, that the Underwriters shall have received General Disclosure Package and the Accountant’s Due Diligence Report at or prior to the deadline set forth in Section 2(a)(xxxvii)(B)Prospectus.
(cb) The Preliminary Prospectus, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h4(a) hereof; on or prior of this Underwriting Agreement. Prior to the Closing Date or the Option Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Underwriters, shall be contemplated by the Commission.
(dc) On Between the time of execution of this Underwriting Agreement and the Closing Date or the Option Closing Date, as the Representative case may be, (i) no change, development or event shall have received the favorable opinion occurred or opinions of in-house counsel become known to the Depositor Company, that might be reasonably expected to result in a Material Adverse Effect (other than as specifically described in the General Disclosure Package) and BMW Financial Services addressed (ii) no transaction which is material to the UnderwritersCompany shall have been entered into by the Company, dated except as required or permitted by this Underwriting Agreement.
(d) The Underwriters shall have received, on the Closing Date and in form and substance satisfactory to the Representative and counsel to Option Closing Date, as the Underwriters.
(e) The Representative shall have received case may be, an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx Cxxxxx Godward Kronish LLP, counsel to for the Depositor, BMW Financial Services and the TrustCompany, addressed to the Underwriters, dated as of the Closing Date or the Option Closing Date, as the case may be, and in a form reasonably satisfactory to Hxxxxx Xxxx Nemerovski Cxxxxx Xxxx & Rabkin, A Professional Corporation, counsel for the Underwriters, which opinion shall be in substantially the form attached hereto as Annex A.
(e) The Underwriters shall have received, on the Closing Date and addressing corporatethe Option Closing Date, enforceability and securities matters satisfactory in form and substance to as the Representative and counsel to the Underwriters.
(f) The Representative shall have received case may be, an opinion or opinions of Xxxxxx, Xxxxx Hölters & Bockius LLP, counsel to the Depositor, BMW Financial Services and the TrustExxxxx Partnerschaft von Rechtsanwälten, addressed to the Underwriters, dated as of the Closing Date or the Option Closing Date, as the case may be, and in a form reasonably satisfactory to Hxxxxx Xxxx Nemerovski Cxxxxx Xxxx & Rxxxxx, A Professional Corporation, counsel for the Underwriters, which opinions shall be in substantially the form attached hereto as Annex B.
(f) The Underwriters shall have received, on the Closing Date and addressing the following issues (i) none of Option Closing Date, as the Depositorcase may be, the Trust or opinion of in-house intellectual property counsel for the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the UnderwritersCompany, dated as of the Closing Date satisfactory in form and substance to or the Representative and counsel to the Underwriters.
(h) On the Option Closing Date, as the Representative shall have received the favorable opinion of Xxxxxxxxcase may be, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated in a form reasonably satisfactory to Hxxxxx Xxxx Nemerovski Cxxxxx Xxxx & Rxxxxx, A Professional Corporation, counsel for the Underwriters, which opinion shall be in substantially the form attached hereto as Annex C.
(g) [Intentionally Omitted.]
(h) The Underwriters shall have received, on the Closing Date and the Option Closing Date, as the case may be, the opinion of Hxxxxx Xxxx Nemerovski Cxxxxx Xxxx & Rxxxxx, A Professional Corporation, counsel for the Underwriters, dated as of the Closing Date or the Option Closing Date, as the case may be, with respect to certain securities law issues the issuance and sale of the Offered Securities by the Company, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representative Underwriters may reasonably requestrequire, and the Company shall have furnished to such counsel shall have received such papers and information documents as they may reasonably request have requested for the purpose of enabling them to enable such opinions or negative assurance letters to be based pass upon such matters.
(ri) The Representative Underwriters shall have received copies of each opinion of counsel delivered to any rating agencyreceived, together with a letter addressed to on the Representative (but only to Closing Date and the extent that the Representative is not an addressee of such opinion), dated the Option Closing Date, to as the effect that the Underwriters case may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositorbe, BMW Financial Services and the UTI Beneficiary shall have furnished to the Representative a certificate of each of the Depositor, BMW Financial Services President and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Chief Executive Officer and Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any Operations and Chief Financial Officer of the foregoing officers of its general partner, as applicableCompany, dated as of the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services Date or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) the representations and warranties of the Depositor, BMW Financial Services and the UTI BeneficiaryOption Closing Date, as the case may be, in which such officers, to their knowledge after reasonable investigation, shall state that: the representations and warranties of the Company in this Underwriting Agreement and the Transaction Documents to which it is a party, are true and correct, correct in all material respects (iiiif not qualified by materiality or by a reference to a Material Adverse Effect) and in all respects (if qualified by materiality or by reference to a Material Adverse Effect); the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iv) (in or the case of the Depositor and BMW Financial Services only) that Option Closing Date; no stop order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; and, subsequent to the respective date of the Company’s most recent financial statements in the General Disclosure Package, there has been no Material Adverse Effect, nor any change, development or event that might be reasonably likely to result in a Material Adverse Effect, except as set forth in or contemplated by the General Disclosure Package.
(tj) Each Class of Notes The Company shall have been rated obtained and delivered to the rating specified Underwriters the Lock-up Agreements referred to in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing ProspectusSection 1(cc) hereof.
(uk) The Representative Company shall have received, from each of BMW Financial Services, the UTI Beneficiary and the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i) certificate of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and in the Transaction Documents and (iv) designation of incumbency of each such entity.
(v) All requirements of Rules 15Ga-2 and 17g-10 under the Exchange Act have been and will be timely complied with.
(w) The Depositor shall provide or cause to be provided furnished to the Representative conformed copies of Underwriters such opinions, certificates, letters further certificates and documents as the Representative or counsel Underwriters shall reasonably request (including certificates of officers of the Company), as to the accuracy and completeness of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to the obligations of the Underwriters hereunder.
(l) At the Closing Date and the Option Closing Date, as the case may reasonably requestbe, the Offered Securities shall be eligible to be traded on the NASDAQ Global Market, subject to official notice of issuance, if applicable.
Appears in 1 contract
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties made on the part of the Company herein, to the accuracy of the statements of Company officers of the Depositor and BMW Financial Services made pursuant hereto when madeto the provisions hereof, to the performance by the Depositor and BMW Financial Services Company of their its obligations hereunder, hereunder and to the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee The Representative shall have received a fully executed copy letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of each of PricewaterhouseCoopers LLP and Deloitte & Touche LLP confirming that they are each independent public accountants within the meaning of the Act and stating such other matters in form and substance satisfactory to the Representative concerning certain financial information with respect to the Notes Company set forth and Certificates, a conformed copy thereof. The Transaction Documents, the SUBI Certificate, the Notes and the Certificates shall be substantially incorporated by reference in the forms heretofore provided to the RepresentativeRegistration Statement.
(b) Both at or before If the date hereof, and on or before Effective Time of the Closing Date, the Representative shall have received three letters, one relating to the 2021-2 Leases dated as of a date at least five business days Initial Registration Statement is not prior to the date hereofexecution and delivery of this Agreement, one relating to the Preliminary Prospectussuch Effective Time shall have occurred not later than 10:00 P.M., dated New York time, on or about the date of this Agreement or such later date as shall have been consented to by CSFB. If the Preliminary Prospectus Effective Time of the Additional Registration Statement (if any) is not prior to the execution and covering procedures performed as delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the Preliminary Prospectustime the Prospectus is printed and distributed to any Underwriter, and one relating or shall have occurred at such later date as shall have been consented to by CSFB. If the Prospectus, dated on or about the date Effective Time of the Prospectus and covering procedures performed as of the date of the Prospectus, in each case, delivered by KPMG LLP, independent certified public accountants, addressed to the Underwriters, substantially in the form of the drafts to which the Representative has agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Representative and counsel to the Underwriters; provided, that the Underwriters shall have received the Accountant’s Due Diligence Report at or Initial Registration Statement is prior to the deadline set forth in Section 2(a)(xxxvii)(B).
(c) The Preliminary Prospectusexecution and delivery of this Agreement, the Prospectus, each Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor and any “issuer information” (as defined above) included in any Permitted Underwriter Communication required to be filed with the Commission shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(h5(a) hereof; on or prior of this Agreement. Prior to the such Closing Date, no stop order suspending the effectiveness of the a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor Company or BMW Financial Servicesthe Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Underwriters including the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of a majority in interest of the Underwriters including the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities.
(d) On the Closing Date, the The Representative shall have received an opinion, dated such Closing Date, of Xxxxx, Xxxx & X'Xxxxxxxx, P.C., counsel for the favorable opinion or opinions of in-house counsel Company, to the Depositor effect that:
(i) The Company has been duly incorporated and BMW Financial Services addressed is an existing corporation in good standing under the laws of the Commonwealth of Massachusetts, with corporate power and authority to own its properties and conduct its business as described in the UnderwritersProspectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, dated except where failure to be so qualified or to be in good standing would not individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole;
(ii) Each subsidiary of the Company has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where failure to be so qualified or to be in good standing would not individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects, except for liens permitted under the Credit Facility and the indenture governing the Existing Notes.
(iii) The Offered Securities delivered on such Closing Date and in form all other outstanding shares of the Common Stock of the Company have been duly authorized and substance satisfactory validly issued, are fully paid and nonassessable and conform to the Representative description thereof contained in the Prospectus; and counsel the stockholders of the Company have no preemptive rights with respect to the UnderwritersSecurities;
(iv) To their knowledge, except for the Investors Rights Agreement, there are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act;
(v) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state securities laws;
(vi) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or the charter or by-laws of the Company or any such subsidiary, and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement;
(vii) The Initial Registration Statement was declared effective under the Act as of the date and time specified in such opinion, the Additional Registration Statement (if any) was filed and became effective under the Act as of the date and time (if determinable) specified in such opinion, the Prospectus either was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein or was included in the Initial Registration Statement or the Additional Registration Statement (as the case may be), and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of a Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and each Registration Statement and the Prospectus, and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the Rules and Regulations; such counsel have no reason to believe that any part of a Registration Statement or any amendment thereto, as of its effective date or as of such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; or that the Prospectus or any amendment or supplement thereto, as of its issue date or as of such Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statements and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in a Registration Statement or the Prospectus which are not described as required or of any contracts or documents of a character required to be described in a Registration Statement or the Prospectus or to be filed as exhibits to a Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statements or the Prospectus; and
(viii) This Agreement has been duly authorized, executed and delivered by the Company.
(e) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to for the Underwriters, such opinion or opinions, dated the such Closing Date and addressing corporateDate, enforceability and securities matters satisfactory in form and substance with respect to the Registration Statements, the Prospectus and other related matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to the Underwriterspass upon such matters.
(f) The Representative shall have received an opinion or opinions of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwritersa certificate, dated the Closing Date and addressing the following issues (i) none of the Depositor, the Trust or the Vehicle Trust is required to register under the Investment Company Act and (ii) the Trust is structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(g) The Representative shall have received a negative assurance letter from Xxxxxx, Xxxxx & Bockius LLP, counsel to the Depositor, BMW Financial Services and the Trust, addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(h) On the such Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(i) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel to the UTI Beneficiary, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters.
(j) Xxxxxx, Xxxxx & Bockius LLP, in its capacity as federal tax and ERISA counsel to the Depositor, the Vehicle Trust and the Trust, shall have delivered an opinion addressed to the Underwriters, dated the Closing Date satisfactory in form and substance to the Representative and counsel to the Underwriters.
(k) On the Closing Date, the Representative shall have received the favorable opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Depositor and BMW Financial Services, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representative and counsel to the Underwriters, with respect to (i) certain true sale and nonconsolidation bankruptcy matters and (ii) certain security interest matters.
(l) The Representative shall have received an opinion of Xxxxxxx and Xxxxxx LLP, counsel to the Indenture Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(m) On the Closing Date, the Representative shall have received the favorable opinion of Xxxxxxxx, Xxxxxx and Finger, P.A., counsel to the Vehicle Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(n) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(o) The Representative shall have received an opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust and the Vehicle Trust, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(p) On the Closing Date, the Representative shall have received the favorable opinion of general counsel to the Asset Representations Reviewer, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representative and counsel to the Underwriters.
(q) Sidley Austin LLP, counsel to the Underwriters, shall have furnished to the Representative such opinions or negative assurance letters addressed to the Underwriters and dated the Closing Date, with respect to certain securities law issues and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable such opinions or negative assurance letters to be based upon such matters.
(r) The Representative shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Representative (but only to the extent that the Representative is not an addressee of such opinion), dated the Closing Date, to the effect that the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of its date.
(s) Each of the Depositor, BMW Financial Services President or any Vice President and the UTI Beneficiary shall have furnished to the Representative a certificate of each principal financial or accounting officer of the DepositorCompany in which such officers, BMW Financial Services and the UTI Beneficiary, as applicable, signed by its Chairman of the Board, President, any Vice President, the Treasurer, any Assistant Treasurer, the principal financial officer, the principal accounting officer or any of the foregoing officers of its general partner, as applicable, dated the Closing Date, to the effect that the signer of such certificate has reviewed the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the best of his or her their knowledge after reasonable investigation, (i) since the date of the Prospectus (exclusive of any supplement thereto), there has been no event that has had a material adverse effect on the Depositor, BMW Financial Services or the UTI Beneficiary, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto), (ii) shall state that: the representations and warranties of the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company in this Agreement and the Transaction Documents to which it is a party, are true and correct, (iii) ; the Depositor, BMW Financial Services and the UTI Beneficiary, as the case may be, Company has complied with the all agreements and satisfied the all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date and (iv) (in the case of the Depositor and BMW Financial Services only) that Date; no stop order suspending the effectiveness of the any Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed and distributed to any Underwriter; and, subsequent to the respective dates of the most recent financial statements in the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the Prospectus or as described in such certificate.
(t) Each Class of Notes shall have been rated the rating specified in the Ratings Free Writing Prospectus by the hired NRSROs specified in the Ratings Free Writing Prospectus.
(ug) The Representative shall have received, received a letter from each of BMW Financial ServicesPricewaterhouseCoopers LLP and Deloitte & Touche LLP, dated such Closing Date, both of which meet the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(h) On or prior to the date of this Agreement, the UTI Beneficiary Representative shall have received lockup letters from each of executive officers and directors of the Depositor, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of the: Company.
(i) certificate The amendment and restatement of formation, (ii) limited liability company agreement or limited partnership agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and Credit Facility described under "Description of Certain Indebtedness" in the Transaction Documents Prospectus shall have become effective on terms and (iv) designation of incumbency of each such entityconditions satisfactory to the Representative.
(vj) All requirements The Company shall have delivered an irrevocable notice of Rules 15Ga-2 and 17g-10 redemption to the trustee under the Exchange Act have been and will be timely complied with.
(w) The Depositor indenture governing the Existing Notes, pursuant to which the Company shall provide or cause to be provided redeem Existing Notes in an aggregate principal amount equal to the lesser of (x) $52.5 million and (y) the net cash proceeds received by the Company from the offering contemplated by this Agreement. The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as the Representative or counsel reasonably requests. CSFB may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters may reasonably requesthereunder, whether in respect of an Optional Closing Date or otherwise.
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